Introduction to Comparative Law and

Legal Traditions
Legal systems have to be analysed in their context. The history and development of a legal system
matters.

Differences in legal systems can stem from their different cultural, historical and social perspectives.

Legal Traditions (Merryman)

Legal System: an operating set of legal institutions, procedures and rules. Eg. The US has 50 state
legal systems, one for each state, and one federal legal system

Legal Tradition: A group of legal systems, grouped together by some distinguishing feature they all
share. Eg. China, Russia France and Germany have separate legal systems, but they all belong to the
civil law tradition.

A legal tradition is a set of deeply rooted historically conditioned attitudes about the nature of law,
about the role of law in the society and the polity, about the proper organisation and operation of a
legal system, and about the way law is or should be made, applied, studied, perfected and taught.

The civil law tradition originated somewhere in 450 BC, at the supposed publication of the twelve
tables in Rome, stone tablets which set out civil rules for living in ancient Rome.

The common law tradition originated somewhere along 1066 A.D, where William the Conqueror and
the Normans defeated the natives at Hastings and conquered England.

Due to Civil Law being much older, many people believe the civil law to be culturally superior to the
common law. But this is really beside the point: still, this has come to become the prevailing attitude
within civil law countries.

Comparative Law and Its Perils (Alan Watson)

1) Comparative law is superficial: It is hard enough to know in detail one branch of the law of
one system, but to know the history of that branch and its relationship with that of some
other system is well-nigh impossible. One can only know so much about the other country’s
legal system.

2) It is easy to get the foreign law wrong: When studying the foreign law, too much has to be
taken on trust from other writers, including at some point, other comparatist scholars.
Knowledge is derived from too few original sources.
 Furthermore, the difference in languages often means that the subtle nuances of a rule can
get lost in translation.
 Eg. The French definition of contrat is different from the English Contract. Same goes
for Domicile and Domicile..

3) Comparative law is not systematic: Even where there is a relationship between two law
systems, there will invariably be a considerable element of picking and choosing: One cannot
analyse every aspect of the legal systems: He has to pick and choose the various aspects of
it, like the judiciary or the legislature. Because of this, Comparative law will always be
subjective: coloured by the comparative scholar’s innate bias- he picks the parts that he
thinks can be compared, and he only analyses those.

4) The systems chosen for study may have no proper relationship at all: If this happens, the
conclusions will be lacking in significance.

To make things worse of, the systems might be compared at different stages in their
evolution, resulting in an ‘apples and oranges’ type situation.

5) The greatest peril is the comparative scholar’s innate instinct to draw legal patterns
between as many legal systems as possible. Because the human mind wants to draw links
between the systems: In order to achieve this, he ends up with a gross misstatement of
relevant legal facts. He thus ends up falling into all of the previous perils: getting the law
wrong, not being systematic, being superficial, by trying to find a link when very often there
isn’t a link.

6) Linked to this is the last peril that comparative scholars draw legal facts from one legal
system and apply them to another legal system which has a legal relationship with it. The
problem with this is that one is transplanting legal rules and facts from one system and
planting them in another system with the presumption that these rules and facts will bring
about a similar result as the donor country. This is not true: the results will not be absolutely
certain.

Watson submits that what we might do instead, to avoid these perils, is to analyse the historical
relationship that developed between the legal systems, as opposed to the 2 different legal systems
per se.

He denies the idea that one can develop a grand unified theory of legal development pertaining to
all or many societies, due to the fact that someone would probably end up falling into any of the
perils. Societies are just too different: just because people across different societies react similarly to
one legal event does not mean that their legal development is connected.

A Concept of Legal Tradition – H. Patrick Glenn

A tradition is defined as simply repetitive behaviour, passed down over generations.

Law itself is a tradition, something that is passed down to us from the past.

Traditions operate in a complex, looping or reflexive manner, in a number of steps.

1) They come from a point of origination, either precise (the inscription of the 12 tables) or
imprecise (the Australian dreaming). There is an initial capture of information that begins
the tradition.

2) After the capture, the tradition is applied in its society. This is what enables the tradition to
live, as opposed to merely existing in documented form. Once there has been an ongoing
application of the original base of the tradition, the application itself is subject to captures,
and so on and so forth, until there exists a great mass of information that far surpasses the
original normative information from which the tradition derived.
Note: relate it to Hart’s secondary and primary rules distinction. Remember that primary
rules govern society, and secondary rules dictate how primary rules are formed, the rules
about rules.

The perpetuation of a tradition can be interrupted, through 3 distinct situations:

a) The irretrievable loss of the information of the tradition: where all the documents relating
to the tradition are lost in time. The tradition is dead and truly gone, and no prospect or
hope of revival.

b) Where the tradition is no longer living: where no one presently adheres to the teaching, but
the information base of the tradition is retrievable. Eg. No one calls themselves Babylonians
anymore, and no one enforces the code of Hammurabi, but it is found in archaeological digs.

c) Where the tradition is no longer living but is excavated and revived: the linguistic traditions
of Hebrew and Welsh have both been revived since they are important for the Jewish and
Welsh people. The Metis people in Canada had their rights to hunt and fish re-emerged and
re-affirmed by the Canada Supreme Court.

Legal Traditions are living, since it has been captured, and is continuously applied in society. But
how do we distinguish between a legal tradition and a normal tradition? Sometimes the lines are
blurred, where religious law and religious tradition intertwine like in Sha’riah law, or in Hindu Law. It
is not as essential a question as one thinks.

National legal systems are notoriously irreconcilable: relations between systems involve only
independence or subordination. Because all legal systems claim to be supreme with respect to their
subject community, none can acknowledge any claims to supremacy over the same community
which may be made by another legal system.

A legal tradition hence acts as the conceptual and conciliatory devices necessary for the peaceful co-
existence of different legal systems. A tradition-based concept of law enhances the possibility of
conciliation of legal systems.
The Civil Law Tradition Part 1
The Origin of the Civil Law
The codified civil law tradition started with Justinian I, a roman emperor residing in Constantinople.
He started the Corpus Juris Civilis, a codification of all Roman law. The Corpus Juris Civilis consists of

1) The Codex Justinianus, a collection of the constitutions of the Roman Emperors, starting
from Emperor Hadrian to himself. This is essentially a collection of imperial law.
2) The Digest (also known as Pandectae) which collates the law as set down by jurists (rmb,
they were not judges, just lawyers). It covers non statutory law.
3) The Institutes, an official textbook on Roman law for people to study. Even though the
primary purpose of the Institutes were for legal instruction, it was given statutory force
along with the Digest.
4) The Novella, statutes that governed newly annexed territories that Justinian acquired in his
expansion of Rome.

Justinian forbade any external reference to The Corpus Juris Civilis: they were to be the ultimate
source of law for Rome.

In 476, the last Roman Emperor falls, and the Middle Ages begin. The Corpus Juris Civilae is
rediscovered in Europe in 1070, and Europe begins to study it again and to adapt it for their use.
A university at Bologna is created for study of the Corpus Juris Civilis. The law is prized for its
highly intellectual quality, and because it carried the authority of both the pope and the
emperor

The scholars who study at Bologna return to their own countries, and spread the Corpus Juris
Civilis there.

At the same time that the Corpus Juris Civilis is found, Canon law is largely in effect in Europe.
There was a schism between canon law as practiced by the church, and secular state law. St.
Thomas Aquinas eventually managed to reconcile both.

Canon law largely concerned itself with the areas of family law and succession, criminal law, and
the law of procedure.

In 1804, France creates the Code Napoleon, which echoes the Corpus Juris Civilis.

Germany did not receive the Corpus Juris Civilis as well as France: a dispute arose between two
sects, the Germanists and the Romanists on how to properly draft a Germanic civil code.
Germanists were for incorporating a more German, less purely roman flavour. Eventually the
Germanic Legal Code was created in 1871, when Germany unites to become a country.

Commercial Law was also in effect at the time: It largely developed in Italy at the time of the
Crusades. It had its origin in Venice, which was a great commercial centre back then. It was
created and applied not by lawyers, but by the merchant guilds. The interpretation and
 application of commercial law was left to commercial courts, in which the judges were
merchants as well.

These were the 3 main sources of law that governed Europe in the middle ages: Roman law,
Canon law and Commercial law.

Public Law did not originate until much later until the later 1700s, where an intellectual
revolution, brought about by the inception of the Corpus Juris Civilis started taking place. The
law became increasingly viewed as secularised. Ideas such as separation of governmental
powers and natural rights emerged during this period. The intellectual revolution sparked an
increase in nationalism in many countries, particularly in France.

The doctrine of separation of powers had its conception in France by Montesquieu. In France,
the Judiciary were part of the aristocracy: In addition to identifying with the aristocracy, they
refused to apply new laws, and failed to enforce progressive legislative reforms. There was alot
of antipathy against them. Montesquieu stated that in order to prevent abuses of this kind was
to 1) separate the legislative and the executive from the judicial power, 2) then to regulate the
judiciary carefully to ensure it restricted itself to applying the law instead of making the law.

The intellectual revolution culminated in the French Revolution in 1789, where revolutionists
overthrew the monarchy and established a secular state.

Principles of French Law (John Bell)

Sources of Law
Three main sources of law in France: the written Constitution, the Lois (laws) passed by Parliament,
and the various administrative text aimed at implementing the acts.

The French Civil Code is a piece of law as well: it has 3 main principles: Clarity, It had to be clear
enough such that anybody reading it could understand the rules. The Civil Code was designed for the
layman, not the lawyer. General Applicability: It had to cover all sorts of situations, but finally, had
to be Detailed enough so that the intervention of the courts was as minimal as possible.

There are areas of the law which the Civil Code, being 200 years old, has left out. One big example
would be tortious liability, of which there are only 5 articles in the Civil Code. Unjust Enrichment is a
completely judicial invention: there has been no provision in the French Civil Code. Here, lawyers
necessarily have to resort to case law.

Case Law in France is not binding, but merely influential, source of law. Because France is a civil law
country, all the legal rules are supposed to be contained in the civil code, and not in legal cases.
However, French academics agree that it would be foolish to agree that a code contains all the
answers. What the code should achieve is to codify the general maxims of the law; to establish
principles rich and consequences and not descend into the details of questions which could arise
on every question. It is for the judge and jurist, imbued with the spirit of the laws, to direct the
application laid out in the code.
Even though Case Law is not Binding, Judicial Decisions from the highest Courts are highly
persuasive. They are generally respected both by lawyer as well as lower courts. So Landmark
decisions, while not binding, have the same effect as lower courts all end up following it anyway.

The 2 examples above result in a situation where the French Judge is not completely bereft of
power: he has authority to guide the law to shape society.

French Case Law is often succinct. The reason for this is that often enough, things are made evident
by applying the provision. The provision states all the laws, principles and remedies and become the
solution to the case; hence French Judges always go back to the provisions. French Judges also do
not give the reasoning behind their decisions, but rather clear statements of what the right
interpretation of the law is.

This does not mean that the reasoning in French courts is different: Rather, that they are not
captured adequately as part of the justification, because it is not the point of the judgement to
provide broader justifications, unlike common law judgements. The point of the judgement is
merely to state the law as marked out by the provision.

Legal Writings by Academics, while not binding sources of law, have an important and direct
influence as well. Academic writers have an impact on both the theories of legal interpretation and
on specific judicial solutions. They are exceptionally important when Judges are confronted with
unprecedented situations, and are often relied in that case. Eg. Laruelle & Delville, where the
Counseil d’Etat (Council of State, the highest administrative law court) directly applied the solution
from an article by a French academic.
The Civil Law Tradition 2: Institutions
and Judges
The French Judiciary (The Division of Jurisdiction- Merryman)

The apex of the French model is the Supreme Court of Cassation, a body that is created to provide
authoritative answers to questions of interpretation of statutes referred to it by the ordinary judges.
They only handle questions about the law: arguments about the facts of the case are excluded. It
also decides only on the question of law presented to it: it does not decide the case.

Civil law countries also have a separate system of administrative courts, entirely separate and
exercising an independent jurisdiction, due to the doctrine of separation of powers. This stems from
historical complaints against the judiciary in pre-revolutionary France that judges wrongly interfered
with the administrative work of the Government in a variety of ways. Separating the
administrative and judicial powers help to deny the judiciary the opportunity to interfere in the
administrative process.

The Conseil D’Etat, or Council of State, is the supreme administrative law body in France. It hears
and decides complaints concerning the legality of administrative action. The landmark decisions of
the Conseil D’Etat are a principal source of administrative law.

The Jurisdictional Court, or tribunal des conflits, handles conflicts between the civil system of justice
and the administrative system of justice. There are two kinds of conflicts:
  Positive conflict: both systems consider themselves competent for the same case.
 Negative conflict: both systems consider that the other system is competent for the
case, resulting in a denial of justice.

In both cases, the tribunal des conflits will render final judgment on which system is competent.

The Constitutional Council (Conseil Constitutionnel) decides whether certain provisions conform to
the Constitution: they are a separate body from the Judiciary and the Administrative Courts.

The 3 separate institutions are a manifestation of the separation of powers doctrine.

The German Judiciary- John Bell

Germany is divided into different Land (states). The legislation pertaining to each Land is separate,
so each land has its own court and appellate court.

These lands are integrated at a federal level.

Germany’s federal constitutional court is called Bundesverfassungsgerichtshof.

Each Land has a Judicial Council (Richterrat) whose role is to be involved in general and social
matters concerning judges, and to take part in wider bodies affecting all who work in the court
service.

Promotion in the Judiciary has a necessary political element since the minister of justice has the final
say.

Legal Education
Students study 4 years to pass a state examination, which tests academic knowledge of the law.

Once they pass the exam, applicants are admitted as trainees for 2 years for which they will have
placements in the civil courts, the criminal courts and the administrative courts.

Students then sit the second state examination, where upon passing they will be eligible to be
appointed judges.

Judges are bound to take part in continuing education, but they are free to decide how to go about
it.

The Politics of Judging in Germany (A. Stone Sweet)

Stone submits that the doctrine of separation of powers is quickly becoming obsolete: Judges now
participate in constitutional politics, while parliaments start to adjudicate. The barriers separating
law and politics are little more than academic constructions. This process has been legitimized in
the concept of constitutional review
A new form of constitutionalism is taking place in Europe that is replacing the old doctrine of
separation of powers, which legitimizes. There are 3 approaches of this new constitutionalism; stone
discusses the 1st one only because it is the most prevalent, by attacking the classical theory of
government.

attacking the old Kelsenian constitutional theory

Hans Kelsen came up with the hierarchy of norms: the idea that legal norms derive their legitimacy
from other rules higher up the hierarchy in a pyramid of rules. At the apex of this pyramid is the
Grund Norm or basic norm, from which all rules derive their validity. In real life, the grund norm
manifests itself as the constitution, from which all other laws derive their legitimacy from.

The constitution was seen as the sovereign will of the people in a democracy, who delegate their
powers to parliament or legislature. This is called the principal-agent relationship, where the
sovereign will of the people is the principal, and parliament/the legislature is the Agent.

In the Kelsenian model, constitutional courts are needed to reaffirm the constitutionality of norms.
Constitutional courts have to be separate from the judiciary because law making is a political, not a
judicial, process. The constitutional courts should not erode legislative sovereignty too much; they
should do no more than what is necessary to guarantee the normative superiority of the
constitution through constitutional review.

In this model, there are 2 kinds of lawmaking, positive legislature and negative legislature.
Parliament occupies the role of the positive legislators since they create laws, while the
constitutional courts are the negative legislators because they strike down laws which are
unconstitutional.

The problem with this model is that the constitutional courts are no longer separate from the
lawmaking process: in fact, by giving them the power to pronounce laws unconstitutional, they
become the supreme legislators.

Stone also submits that it is impossible to separate the positive and negative legislators: the judiciary
and the legislature will become intertwined. At the same time, to acknowledge that these things
happen would effectively destroy classical separation of power schemes, hereby shattering the
kelsenian model of government.

4 functions of Constitutional Review

It is claimed that constitutional courts perform 4 regulatory ‘functions’:

1) They operate as a ‘counterweight’ to majority rule;

2) They ‘pacify’ politics;
3) They legitimise public policy
4) They protect human rights

Stone submits that in order to perform these 4 roles, constitutional judges have to act like positive
legislators.
  Eg. It would be impossible for judges to legitimise public policy only by striking down laws
against public policy- they would have to send a signal to Parliament highlighting what would
be the correct policy to follow. The moment they do this, they are engaging in positive
legislating.

Ultimately, legislating, litigating and constitutional adjudication are mutually constitutive

processes. Under certain conditions, each establishes the context for the others.

The Kelsenian separation of powers model should be abandoned in favour of a mutually constitutive
model, where all the various institutions in a legal system cooperate to create and apply the law,
with no institution having a distinct role.

Japanese Law in Context (Setsuo Miyazawa)

Setsuo submits that the judiciary in Japan are politically repressed and subservient.

The General Secretariat of the Supreme Court controls the administration of lower court judges.
Judges in the GS have supervisory power over those actually handling cases in the field. Judges from
the GS have a higher chance of becoming a Supreme Court Judge than conventional judges, even
though they do not handle real cases as often. GS judges are also constantly re-appointed in their
roles within the GS. Control over the GS is retained by a small group of self appointed elite judges
who spend a large part of their career in administrative control of other judges.

The GS often has judge exchanges, loaning judges to the Justice Ministry for limited terms as a
solicitor. Because of this, the GS has attracted criticism that judges who return from these exchanges
often return with pro-government attitudes and decide cases accordingly.

Judicial Independence in Japan (Ramseyer)

Ramseyer implies that the Japanese Judiciary is often subservient to the Liberal Democratic Party
(LDP- a party which ruled almost continuously for 54 years before being defeated in 2009).

By controlling access to the Supreme Court Secretariat, the LDP controlled the judges. The LDP
constantly appointed politically reliable justices to the Supreme Court, and then staffed the
secretariat with younger politically reliable judges.

The LDP also penalised judges for writing politically incorrect opinions.

Ramseyer attributes this to the fact that the LDP was a major political party in Japan, and hence
influenced the Judiciary to its needs.

In contrast, American politics normally change every 4 years, with the Republicans and Democrats
taking turns in parliament. Because of this, both political parties would not want to influence the
Judiciary, for fear that when it is their turn to be the opposition, the judiciary would work against
them.
The Civil Law Tradition 3: Codification
When Countries import the civil code (most significantly the Code Napoleon), how they do it can be
classified into 3 main categories:

1) Literal Translations: Where the civil code is translated almost word for word, with little to no
change whatsoever. Useful in developing nations, where there is no time to create a whole
new legal code, so they just import the French Model. Eg. Central America.

2) Broad Lines remain: Where the country creates its own legal code, but is clearly influenced
by the foreign Civil Code, which manifests in the importing of similar legal doctrines: Thus
the textual wording of the Code is different, but similar principles can be found.eg. Vietnam

3) Major Overhaul: Where the country creates its own legal code which bears little to no
resemblance to the foreign code. The country merely consults and looks at how the other
country did it, and codifies its own laws without importing any principles. Eg. Germany,
which did not follow the French system but used Legal Science to craft its own code.

Submit that there is a difference between importing a law as opposed to a legal principle: the legal
principle is the principles underpinning the law, untouched by any cultural or social values that a
society has. When a society codifies a legal principle into a law, it by necessity incorporates some
of its social and cultural values as part of the codification process. Hence, the law in a country is a
manifestation of legal principles incorporating that country’s social and cultural traditions. When
countries seek to import ‘laws’ from a foreign country, what they should do is import the legal
principle, the one untainted by cultural norms and social traditions, which results in the ‘broad lines’
incorporation. When for some reason, the time is of the essence, the country imports the literal
translation, the country imports the other country’s social and cultural norms as well: if the social
and cultural factors of the country are similar, the acclimatisation period is short: if not, legal
irritance occurs, where the recipient country slowly tries to adapt the law into its own society, but
getting rid of the social norms and traditions incumbent in the textual version of the law.

Codes and Codification (Merryman)

The idea behind the Corpus Juris Civilis was to abolish all prior law. However, certain elements of the
prior order were incorporated into the Corpus Juris Civilis.

Similarly, the French in making the French Civil Code of 1804, sought to do away with the old legal
order. Any principles of prior law that were incorporated into the Code Napoleon derived their
validity not from the previous legal order, but from the Code itself.

The ideology of the French codification accurately reflected the strong nationalism that
accompanied the French Revolution.

The codification of the French Civil Code included the separation of powers doctrine, to limit the
power of the Judiciary, because of strong antipathies towards the Pre-Revolutionary Judiciary, which
was often associated with the aristocracy. It had made the French wary of judicial law making
disguised as interpretation of laws. To do this, the French Code set out to be

1) Complete. The French code was supposed to be a code without gaps, to prevent Judges
from making law to fill the gap in the code;
2) Coherent and having no conflicting provisions, so Judges would not have to choose one
provision over another and create law;
3) Clear, so Judges would not decide what meaning to give an ambiguous provision.

The idea of codification aroused widespread interest in Europe. Other Countries decided to emulate
it, most notably Germany. It was proposed that Germany adopt the French Civil Code in its country.

This was opposed by Friedrich Karl von Savigny, who argues that the law of a people was a
historically determined organic product of the people’s development, the Volksgeist. Hence, a
thorough study of existing German Law and its historical development had to be conducted first, in
order to deduce the underlying principles behind German Law before codification could take place.

This train of thought espoused by Savigny is known as The Historical School. The basic premise of
the German Historical School is that law is not to be regarded as an arbitrary grouping of regulations
laid down by some authority. Rather, those regulations are to be seen as the expression of the
convictions of the people, in the same manner as language, customs and practices are expressions of
the people. The law is grounded in a form of popular consciousness called the Volksgeist. These
general principles of the law can be discovered through scientific analysis of the law, called Legal
Science. Hence the proposed reconstruction of the German Law would be a scientific
reconstruction.

Eventually, in 1871 Germany is united, and the Civil Code comes into being, not by Legal Science, but
by political events.

The Code Napoleon is forward looking: its idea was to abolish the old laws and create new ones for
the Republic of France. The Germanic Civil Code of 1896 is backward looking: it looks to the past, to
history and the culture of the German People, and expresses the principles that united the German
people in a legal code. Both however, have similarities, such as the sharp separation of powers, and
having a unifying function.

Moral of the Story: Different Codes come about through different political, social and cultural
influences. Provisions across different provisions cannot just be compared textually. One has to
consider parliamentary intent, the culture surrounding the law, etc. Because even though the
French Civil Code has similarities to the Germannic Code, to say that they are similar to each other
would be to ignore the purpose behind the codes. Consider the ideology behind codification.

Reception of the Code Civil (Introduction to Comparative Law-K

Zweigert)
Under Napoleon Bonaparte, France expanded eastwards, conquering many countries. Due to this,
many countries received the French Civil Code and were influenced by it.
Belgium
Ceded to France in 1797, and became independent in 1830.

It voted to retain the French Civil Code that it had acquired under French Rule. Belgium Legal
thought and judicial decisions are very close to those in France.

Netherlands
In 1806 Napoleon forced the Dutch to accept his brother Louis as King, and saw to it that in 1809 a
version of the Code civil was enacted with marginal adaptations to Dutch legal practices.
Netherlands retained the Code after it was liberated, and the French Civil Code was largely in effect
all the way until 1947, when a new royal decree was passed for the drafting of a new civil code. Due
to the fact that Belgium was part of the Netherlands until 1838, the Netherlands code bears a similar
structure to the Germanic code.

Germany
France had occupation of German territories west of the Rhine due to the Treaty of Luneville. These
territories automatically acquired the new French Civil Code in 1804. Other than that Germany
developed its own Civil Code, as explained above.

Switzerland
French territories within Switzerland acquired the Code as well in 1804, and the Code remained in
force even after the territories joined Switzerland in 1815. Throughout the 19 th Century the Cantons
slowly produced their own codes, with the French Code as the Model, but in 1912 the cantonal laws
in Switzerland were replaced by the Swiss Civil Code.

Italy
The French Civil Code was brought into the country when it was invaded by France. When it was
liberated, the French Civil Code was quickly repealed, but later brought in when Italy realised that
the traditional canon law and Roman law were inadequate for the country. In 1861, Italy was
formed, and the Codice Civile was enacted in 1865, which consolidated the law of Italy. The Italian
Civil Code was substantially based on the French codification, but differed in certain aspects. The
Italian Civil Code was slowly improved over the years, substantially expanding in 1939.

Spain
In the middle ages Spain had their own law book, Las Siete Partidas, which was heavily influenced by
Roman Sources. The Spanish Kingdom followed this until the 19 century, where there was a plan to
create a unified Spanish private law, inspired by the Code Napoleon. However, local resistance of
the several provinces proved too great, and only reforms of land law could be carried out by special
statutes. In 1889, the Codigo civil was created, which relies heavily on the French Code. It is still in
force today. However the Codigo civil was only has subsidiary force in regions which previously
followed the fuero system. A unified civil code is still being worked on, by codifying the current fuero
laws of the provinces.

Portugal
Portugal’s law has always been fairly well unified, due to the ordinances of King Alfonso V and his
successors. A draft version of Portugal’s Civil code came into effect in 1867, which has since been
replaced by the Codigo Civil of 1966. The Codigo Code pays remarkable attention to foreign
legislation, especially German, Swiss and Italian. However compared to Italy and the upcoming
Dutch codifications it does seem conservative and retrogressive.

The Ottoman Empire – Egypt, Turkey, Lebanon, Syria

Previously under the Ottoman Empire, Islamic Law controlled private law, although a code of
commerce was introduced that was based on the French model. In the 1870s Egypt became
independent from the Ottoman Empire, and signed a treaty with the European countries in 1876.
‘Mixed Tribunals’ were created, with European Judges implementing a ‘Codes Mixtes’, a mix of the
French Civil Code, the Code of Commerce and other French Codes. A few years after world war I,
Egypt became an independent kingdom. In 1937 Egypt decided to prepare a new Egyptian Civil Code.

Turkey replaced its traditional private law with the Swiss Code in 1926

Lebanon, in 1932, enacted a Code des Obligations et des Contrats, drafter by French Lawyers.
Subsequent Codes of Procedure and Code of Commerce were also influenced by French law.

In Syria, the French influence was slight, but they borrowed their Civil Code from Egypt. Egypt’s Civil
Code has been subsequently been received by many other countries in the middle east.

Algeria, Tunisia, Morocco

The states have been heavily influenced by the French politically. As a result, their law of obligations
and commercial law have been virtually identical to the French equivalent.

In 1834 Algeria adopted the Code civil and the Code de commerce.

Tunisia and Morocco acquired a Code des obligations et des Contrats in 1906 and 1913 respectively

Sub-Saharan Africa
In these states, French law applied to all French citizens who had left France to reside in the colonies,
their offspring and naturalised citizens. However, French colonial legislation always offered the
African populations the possibility of opting for French law. Most of these attempts were
unsuccessful, except in Senegal. However on gaining independence the new African states now
apply French law, as well as African customary law and Islamic law. In 1964 Senegal enacted a Code
des Obligations.

South and Central America

The newly founded states of Latin America, after obtaining independence from Spain, needed
national unity and unifying legal codes: the only available model was the French civil code. Spanish
law was rejected since it was the law of the oppressor, and it wasn’t even codified or uniform. The
French Civil Code, the product of a revolution, resonated within the Latin American states due to
their own struggles for independence. The civil codes of the Latin American states are heavily
influenced by the Code Civil. Haiti, Bolivia and the Dominican Republic adopted civil codes that are
more or less translations of the Code Napoleon. Chile relied on French Law heavily, but created an
independent and original Civil Code. Argentina’s code came into force on 1869; Brazil had no civil
code until 1916, where its code drew on the French, Portuguese and Italian codes, as well as German
and Swiss codes.
North America
2 states in North America follow the Civil Law tradition: Louisiana and Quebec. However, being
surrounded by common law states and being governed by federal common laws, they have been
influenced by the common law as well. Lawyers in Louisiana are educated in common law schools,
and the Supreme Court of Canada as a final court of appeal also applies the law of Quebec, even
though the judges are common law judges. Due to the peculiar circumstance of the 2 states, being
influenced by both the common law and civil law tradition, both places have flourishing and world
famous centres of comparative law.

The Japanisation of Western Thought and Institutions (Jansen)

The unequal treaties signed in 1858 between Japan and the Western Powers were inequitable and
humiliating; Japan was forced to relinquish tariff autonomy and concede extraterritoriality to
Westerners. As a result, Japan wanted to modernise as soon as possible to obtain equal status with
the West. It sought to do this by adopting a Western Style legal system.

The French Civil Code was highly regarded by Japan, who saw the code as efficient and of high
intellectual quality.

The Japanese ordered a literal translation of all 5 French Codes in 1869, and to promulgate it
immediately. In 1890 the drafts were scheduled to go into effect. However the draft, which codified
the ideal of equality between individuals in the inheritance of property, drew sharp criticism from
people who felt that they would threaten the primacy of the Japanese Family Unit, and as a result
held up the implementation of the Code.

This is an example of Legal Irritants, where the local culture and society take time to adjust to an
imported law, and hence amend the imported law accordingly.

The provision relating to inheritance of property was amended, to the effect that the household
head would inherit all property. This was due to Japanese cultural values of respecting the family
unit as sacred, over the rights and needs of the individual. Japanese Sentiment was of the opinion
that loyalty and filial piety would perish with the enactment of the civil code, due to the western
notions of individual equality and human rights respecting the individual. 2 arguments against the
proposed legal code were as follows:

1) That the section allowing unlimited freedom of contract, while raising society’s productive
capacities, end up widening the gap between the rich and the poor, producing conflicts
between the rich and the poor.
2) The section on personal and domestic relations, based as it was on an imitation of Western
individualism, had been drafted with the idea that husbands, wives and brothers were
separate individuals. Consequently there was the danger that the code would break up
Japanese society which had always been upheld by teachings of reverence for ancestors.

In 1898 The Meiji civil code was formed, which, instead of literally translating the whole French Civil
Code, adopted all the strong legislative points from the western nations instead of just France. In
addition, it ensured that Indigenous Japanese institutions and practices should be fully taken into
account.

The new code greatly revised the section on social relationships to establish the power of the
household head by means of specialised provisions for family heads, parents and fathers. Individuals
were constrained by being placed within a status hierarchy of family relationships.

However in 1947, during the American Occupation, the concept of ‘house’ was thoroughly
repudiated by the Americans, although most Japanese opposed the ‘morality’ the Western powers
imposed from abroad.

Japan ultimately adopted the ‘broad lines’ approach, retaining influences of the French Code
while adopting it to suit their own culture and society.

Legal Development of Vietnam (A Vietnam case study- Rose)

Vietnam has traditionally been influenced by Chinese cultural and legal traditions. It inherited the
Chinese Imperial Code, along with its Confucian ideologies, in the Le (1428-1788) and Nguyen
dynasties (1802-1845). It also infused Vietnam with strong penal codes.

Vietnam traditionally relied on morality, custom and kinship to regulate society, as opposed to
formal legality. (resonates with the choosing of li over fa). Due to the deeply ingrained Confucian
Values in the system, Vietnam did not blend well with the individual rights-based system introduced
when the French colonised the country. A parallel legal system was formed, in which a civil law
system governed French citizens and other Europeans, while the Nguyen code governed the
Vietnamese.

The French also trained a lot of Vietnamese lawyers in the French legal system, and some of these
lawyers still remain in Vietnam today. After declaring independence from the French, North Vietnam
adopted a highly centralised legal system, in accordance with a soviet style command economy.
Land was nationalised and redistributed, and both land and industry were brought under state and
collective ownership.

The post-war Vietnamese conception of rights was very strict: any activity, particularly commercial
activity, is unlawful unless expressly authorised by law’.

However in 1986, The 6th Communist Party Congress announced that Vietnam would virtually
abandon the centralised economy in favour of a market based system that encouraged foreign
investment. In 1992 Vietnam had an extremely drastic legal reform, where the Constitution was
reconstructed, focusing on the legal recognition of private ownership and recognition of the private
sector economy.

Vietnam is expected to continue to develop along these lines, promoting economic liberalisation
while also preserving a socialist, one party state apparatus. However the adoption of overlapping
laws by different Governmental bodies and the lack of a unified legal framework result in an
uncertain climate for investors. Vietnam’s legal development still has a way to go. It faces problems
such as overlapping of conflicting laws, difficulties in the promulgation of new laws, corruption,
and a lack of predictability and uniformity.

There are 3 main legal groups in Vietnam, those educated in the French or US legal tradition
between 1940 and 1975, lawyers trained in the Soviet Union or East Germany as well as locally
trained graduates at the University of Vietnam.

Vietnam generally has faced a very haphazard legal development.

The Common Law Tradition
The Common law does not lend itself very well to borrowing. You cannot just borrow the skeletal
aspect, because you also have to bring across all the major judicial decisions implemented
throughout English history. This makes the Common law very unwieldy to translate. But there are
exceptions. Eg. when you have a fairly detailed statute regulating one area of law(Torrens system)
When you have detailed statutes, you can just bring those statutes over, and work out the rest
yourself, because the body of case law in the common law is still based around that statute.

The Common Law (David & Brierley)

English law developed autonomously and was hardly influenced by the European Continent. Due to
the fact that there was no codification of English Laws, the legal system has an extremely long
historical continuity: a tradition untroubled by revolution. However these claims tend to be
exaggerated.

There are 4 main periods in the development of the English law, listed below

Pre 1066, before the Norman Conquest

Anglo Saxon law was prevalent in England. Even though Rome had occupied Britain for 4 centuries,
Roman law was not left behind. Not much else is known of the law in this period. It is presumed that
the law in force was mostly that of local custom. There was no law common to the whole of England
then.

1066 to 1485, the accession of the Tudors

William I conquers England in the Norman Conquest. Anglo Saxon law was maintained and enforced.
Due to the foreign occupation, England quickly acquired a strong and centralised administrative
organisation, rich in experience.

Feudalism is established, a system where nobles who won land are directly subordinate to the King.

Feudal Courts are established, applying the local customary law. The Royal Courts were presided
over by the King, who exercised the right of ‘high justice’. He did not hear contestations except in
very exceptional cases, such as when the peace of the kingdom was threatened. 3 other different
courts were established- the court of Exchequer, the Court of Common Pleas, the Court of King’s
Bench, but the jurisdiction of each started to intertwine. The royal courts gradually extended their
jurisdiction and by the end of the middle ages, had become the only courts of justice. The Feudal
courts were eclipsed, along with the ecclesiastical courts.

A system of writs start to form: In order to press a claim before the king’s courts, one had to write to
a royal official, the Chancellor, asking him to deliver a writ, the effect of which was to enable the
royal courts to be seized of the matter upon the payment of fees to the chancery. Apart from this
procedure the judges could only be seized directly upon a complaint or petition. Each writ had to
specify a cause of action, and follow a fixed procedure: an inability to follow the fixed procedure was
often fatal to that cause.
The Common law was thus developed with the view that Remedies precede rights: the Common
law, in its origins, was made up of a number of procedures called ‘forms of actions’. In order to win a
case, the litigant had to select the correct form of action or writ by which the court could be seized.

1485-1832, the development of equity

Due to the strict insistence on form, the common law was exposed to 2 dangers: 1) of not
developing with sufficient freedom to meet the needs of the period and 2) The danger of becoming
paralysed because of the conservatism of the legal world. Due to the restrictive elements of the
forms, it was necessary to find a corrective for the insufficiencies of the common law.

Back then, disappointed parties who failed in their case due to the strictness of the formalities
decided to appeal directly to the King. At first, it was welcomed by the nobility as a chance for the
King to exercise his prerogative, but as the number of Claimants grew the situation became
untenable. In place of the king, the chancellor, as the king’s ‘conscience’, would sit in his place as an
autonomous judge. His interventions were more and more frequent, and soon a court of the
chancery came about which applied the law ‘on the equity of the case’. This was the rise of equity.

It was the rise of equity that helped to stop the decay of the law and prevent England from joining
the codification process like the rest of Europe.

Equity was held in check in a decision in 1616, where James I pronounced in favour of equity over
the common law courts. However a tacit understanding between the common law courts and the
courts of Chancery arose: the jurisdiction of the chancellor was to remain but it would attempt no
new encroachments at the expense of the common law courts, and that it would also continue to
adjudicate according to its precedents.

1832-Today, the modern period

As the law progressed into the 19th and 20th Century, England experienced an unprecedented
development of legislation that supported and reinforced the common law.

The Judicature Acts of 1873-1875 greatly restricted the Judiciary: the distinction between the English
courts were all removed, and all English courts became empowered to apply the rules of common
law as well as those of equity. The Courts of Chancery were fused with the Common Law courts.
However some disagree over the extent that the courts are fused: Lord Denning said that with the
Judicature Act, the law and equity were fused, while others said that they were still separate, but
their administration was fused.

The Spread of Common Law throughout the World (Zweigert & Kotz)

When Britain colonised countries, it brought with them the common law: as a result, the common
law was adopted in many countries around the world. There were 2 kinds of territories Britain
colonised, 1) territories were which at early stages of civilisation and were not politically organised,
and 2) territories which were under control by Foreign rulers which their own legal and political
systems, which the British either conquered or made treaties with.
For the first type of territory, such as Australia, New Zealand and North America, the common law
applied automatically, insofar as it was able to. For the 2 nd type of territory, the principle was to
leave the existing law intact, as well as the existing court systems.

Australia
James Cook I landed on the east coast of Australia in 1770 and established a settlement, and took
the country in the name of the British Crown. The law in force was the English Common Law. Gold
was discovered in Australia in the 19th Century, and the population exploded. Towards the end of the
1800’s it became necessary to federate the several Australian colonies. Eventually, a draft
Constitution was formed, and brought into forced by the British Parliament as the Commonwealth
of Australia Constitution Act, 1900.

Australia imported the common law wholesale, without any serious deviation whether in judicial
decision or legislation. While English decisions are not binding, they are treated as being highly
persuasive. The exceptions are in family law, where they use a modern Family Law Act, as well as in
land law, where they adopt a system of Torrens Registration. Its law is extremely close to that of
England.

Canada
Ceded to Britain by France in 1763. In 1791 an Act was passed by British Parliament separating
Canada into 2 portions, one predominantly French and one predominantly English, both governed by
the British Crown. However revolts broke out, and The British office tried a united system, where
each region was given equal seats in Parliament. This also proved unsuccessful, and finally the British
decided to found a federation including all the British territories in North America.

With the exception of Quebec, Canada followed the English common law quite unequivocally. It has
tended to become more independent as of this century, with more attention being paid to
prompting from the United States.

India
The British, when colonising India, tried to fully respect as much as possible the sovereignty of the
native princes. In the 18th century the Grand Mogul of India’s empire gradually fell to pieces: in order
to secure their interests in India, the British had to take political control, eventually making India a
colony. The English established Courts in 3 towns, applying the English Common Law, with
amendments to cater to Indian society where necessary.

The Common Law eventually arose to become the common law of India in the 19th Century,
although at that time it was very confused, due to the multiple laws that existed in the country:
Hindu Law, Islamic Law, the Common Law.

In 1833, a Law Commission in India was set up, to codify the laws of India and to put them in order.
This was the foundation for the Indian Penal Code. The British, realising that the Muslims and Hindus
would not want to live together in 1 Indian State, created a new country: Pakistan, which came into
independence under the India Independence Act of 1947. India also gained independence, and in
1950 the constitution of India came into force.
Court Procedure in both Civil and Criminal matters basically follow the Common Law. Stare Decisis,
the position of the judge within the system all manifest in India.

Africa
The common law took root in many countries in East and West Africa. Even though it took root in
many countries, the common law all took a similar form. However, the largest part of the African
population remains governed by their own customary African law, and in many regions also by
Islamic Law. This is due to the fact that the British wanted to leave much of the existing structures of
government alone when they colonised Africa. As a result, unwritten African laws remain in force for
the native population, and existing African Courts, where the tribal chief applied the customary law,
remained untouched.

This resulted in many situations where people did not know which rule to apply: African Customary
Law, or the English Common Law? Overtime, African states came to see their customary laws as a
unifying force, and resort more to African customary law rather than the English common law.
African states nowadays are still trying to unify and codify their legal system along African Customary
Laws.

South Africa
Roman law has greatly influenced South Africa, more so than anywhere else in the world. The Dutch
first established a settlement at the Cape of Good Hope in South Africa, and Roman Law was
introduced into the settlement. It soon flourished, and in 1795 the English seized the Cape during
the Napoleonic wars in order to secure their sea links with India.

Upon colonising the place, the British organised and modernised the constitution, administration
and the courts system of the new colony. This was because the old Roman-Dutch Law had no rules
suited for commercial practice: hence it was only natural that many English statutes were adopted
word for word in South Africa. This only stopped after the creation of the Union of South Africa in
1910.

As a result, while South Africa practices Roman law, the English Common law still dominates in
Constitutional and Administrative law, and traditions of the common law can be seen in the courts
structure, the position of judges, as well as the doctrine of stare decisis. However the structure and
law surrounding contract and tort remain governed by Roman Law. The result is hence a curious
amalgamation of both laws in the country. It would be unfair to classify it as either a common law
country or a country governed by Roman-Dutch law.

Israel
Like South Africa, it is difficult to classify Israel as belonging to any specific legal tradition, due to the
presence of so many legal influences on the law: Some from the Ottoman Empire, some from
legislation influenced by Common Law, and some from an enactment of the Israeli legislature.

When the British received Palestine as a mandated territory in 1922, the British decided that the
courts in Palestine were to apply Ottoman laws. Later, after the state of Israel was founded, it was
decided that the law in force (Ottoman laws) should remain in force except in so far as it was altered
or repealed by ordinances o f the new legislature. However, the common law based ordinances,
from the time of the British Mandate, were still in effect. The Israeli legislature, in addition to using
the Common law, adopted the laws of Continental European Systems as well. As a result, the
influence of the common law on the content of Israeli positive private law is on the wane, but there
is still a perceptible influence.

The sources and limits of Legal Authority (Sager)

The American Legal system
Americans had 3 options to pursue after their independence from the British.

1) They could pursue principles of natural justice: start everything from scratch, don’t resort to
British law.
2) Replace English law with another system, another ‘law’ egg. civil law personified in the
French civil code.
3) ‘stilt and crutches’ approach: stick with the English law, but modify it to suit the American
context. This was the option preferred.

Americans were pragmatic-took what they needed, threw out what they did not. They used it to
suit modified, changing circumstances.

2 aspects of American Government, Vertical distribution of Authority and Horizontal Distribution of

Authority.

Horizontal Distribution of Authority: Where Congress shares its lawmaking powers with the
executive and vice versa

Vertical Distribution of Authority: where Sovereignty is shared in between the Federal and State
Government. When there is a conflict of laws between state law and federal law, federal law trumps.

The states are seen as the building blocks of legal Authority in the US. Each state has its own
constitution and laws, and the organic source of source of state authority is derived from the state
constitution.

The federal government is understood to be a government of ‘enumerated powers’, which enjoys

only the authority specifically granted to it by the various provisions of the federal Constitution.
However in practice there are hardly any legal barriers to the exercise of federal legislative authority.
The authority of the US Congress is for practical purposes as broad as that of the states. The states
are ultimately subordinate to federal authority, in both theory and law. Federal laws supersede
local state law as well.

States are also not allowed to tax nor regulate the federal Government in any of its various
manifestations.

State courts have jurisdiction to hear almost all legal controversies within the sphere of their
authority, unless divested of their authority through federal legislation. Citizens whose cases arise
under both federal law and state law can bring a case in either state or federal court.
Structure of the American Legal System and the Separation of Powers
Executive Legislature Judiciary
Federal level President Congress Senate Supreme Court of
the United States
House of Federal Courts
Rep.
State level Governor Legislative body State Courts

State Governments mirror the federal government, with the chief executive being called the
Governor and a bi-cameral legislative body.

Legislative Authority at the Federal level lies with Congress, which is split into 2 houses, the Senate
and The House of Representatives.

a) The senate is composed of 2 persons from each state, elected at-large from within the state
and serving staggered 6 years terms, with approximately 1/3 of the body elected every 2
years. This was set up in such a way as to allow every state, no matter how big or small, to
be given an equal voice.
b) The House of Representatives, in contrast, is composed of representatives elected from
geographic districts within each state. The number of representatives varies according to the
population of each state, and representatives serve terms of 2 years.

The apex of Executive authority, at the federal level, is the President of the United States. In theory
he is elected by special electors in each state who are in turn elected by the population at large. In
practice the presidential electors are invisible and irrelevant: voters select the presidential candidate
of their choice. Once elected, the President serves a fixed term of 4 years and may only serve 2 such
terms. He enjoys an independent and exclusive national political mandate. Being unburdened by
direct political responsibility, he alone represents the people with a single voice in affairs of state.
Conversely, he cannot be assured of legislative support; A president can be hindered by the
legislature which can be from his opposing party.

A problem arises when the president signs multinational agreements, ‘executive agreements’
without the endorsement of Congress. The Supreme Court has held that such agreements displace
conflicting state laws, but are powerless to displace federal laws. This shows that there exist some
areas of governmental concern that are not within the exclusive domain of the President.

the distinct separation of powers sometimes leads to difficulty in governing America.

The Legislative Veto is a mechanism that Congress used to delegate legislative authority. Essentially,
Congress delegates administrative authority, but retains the capacity to revoke that authority in
individual cases by some expedient mechanism short of full legislative reconsideration.

The Supreme Court held that such a mechanism was unconstitutional. An instance where the
separation of powers doctrine leads to problems
Constitutional Judiciary
The judiciary plays a robust role in the US, having being given the power of judicial review, the
power to strike down any governmental conduct that is deemed unconstitutional. The locus
classicus dictating the use of this power is in Marbury v. Madison, which rests on 3 propositions:

1) That the Constitution is Law, not merely an enshrinement of a set of political ideals
2) That the Constitution is Supreme Law, and overrides any conflicting sources of law within
the legal system
3) That judges have the same responsibility and authority with regard to the Constitution as
they do with regard to other sources of law.

Furthermore, Judicial interpretations of the Constitution cannot be displaced by contrary

legislation. Due to the deep tradition of an independent judiciary and the entrenched position of the
Supreme Court Judges (they have life tenure), they are not easily impeached.

In search of a ‘Common Core’

Is it possible to find a uniform legal code, applicable to most, if not all countries, or at least all
countries in a region? Generally, the smaller a region is, the easier it is to find a common core or
uniting value. However, this might not be the case in places like Southeast Asia, where there is great
cultural diversity across the region, from Vietnam to Indonesia. Due to the vast differences in
culture, it can be hard to find some common ground and correspondingly develop universal legal
principles applicable to all.

One also has to take into account the socio-economic factors across various countries. E.g. Countries
across Southeast Asia are at different levels of development, from developed countries like
Singapore and Malaysia to extremely poor nations like Myanmar. Because of this, certain legal
principles, especially those pertaining to commercial activities such as banking and trusts, while
certainly applicable to Singapore, might not be as applicable to developing nations like Myanmar or
Laos which have agricultural based economies. Legal integration between nations can only go so
far.

One also has to understand that ASEAN has a policy of respecting a country’s values, and hence
would be reluctant to interfere with other countries.

The Trento Project

Academic project to identify the common core of European law (sounds like kelsen’s historical
school) meant to be informational. They aim to strike a fine line between being ‘preservationist’ and
‘uniformity’. They recognise that differences between legal systems are so great that they would
defeat any attempt to impose uniformity.

There might be very little that scholars can do to get countries to adopt this. But this should not be
considered a failing of the Trento project. The aim is harmonisation of laws across the common law.
The identification of core values is aimed at harmonisation.
Against a European Civil Code- Pierre Legrand
Legrand writes out against proposals for a common European Civil Code that aims to cement legal
unity across European Cultures. (Remember that England follows the common law, while a large part
of Europe practices civil law). He argues that such a code should not be implemented, and gives his
reasons.

1) Europe has 2 working and efficient legal traditions, the common and civil law, which foster
different views of the nature of legal reasoning. He proposes that the common law had explicitly
refused to follow the civil tradition and had intentionally distanced itself from it in order to
affirm its ‘Englishness’. It is simply not attracted to the civil law. He proposes that the civil law
and common law must be seen as two discrete epistemological formulations which enforce
deeply-embedded world view within the societies they occupy. In short, they are just too
different.

2) He states that the promotion of a European Civil Code represents an attack on the pluralism of
Europe: it would mean the excommunication of the common law way of understanding, and the
relegation of obsolescence of its particular insights.

3) To promote a European Civil Code would be arrogance, in suggesting that a civil code is superior
to the common law. It is also fallacious, by suggesting that it is returning to a golden age of jus
commune, where in actual fact England had never embraced the jus commune. He also contends
that a European Civil Code would be a retrograde step since it becomes an epistemological
barrier to an appreciation of the complexity of legal knowledge. Lastly, that it is impractical,
because ultimately due to the large differences in legal tradition between the countries, the
Code would still be interpreted differently: An English Judge would interpret it differently from a
French Judge.

Ultimately, legrand is saying that cultural differences between the countries are too vast for a
unified civil code to be workable. It boils down to the difference between cultures. This again, forms
the basis for his attack on Alan Watson’s Legal Transplants. Essentially both of them are arguing
about the extent of difference between the cultures.
The Russian Federation
Legal systems usually change as a result of events in a country. Sometimes, they change due to the
influence of political personalities. Russia’s legal system was heavily influenced by 2 political
leaders, Boris Yeltsin and Vladimir Putin. Civil Law is codified, but there remain important difference
between Russia and France, and the remains of Marxist/Lenin ideology remain in legal education.

Legal Systems of the World- Russia (Kritzer)

Following the dissolution of the Soviet Union in December 1991, the Russian Federation became a
sovereign state with its own self contained legal system. Before this, Russia under Gorbachev was
moving towards a ‘rule of law-based state’ in the 1980s.

When Boris Yeltsin took over in 1992, his regime openly embraced the idea of moving towards a
market democracy and set about to reform the existing legislative base and legal institutions so as to
facilitate that change. In the 90’s, Russia, in its desire to have a civil law system, amended all its
major codes, most being completely redrafted. These changes also greatly changed the economy of
Russia to a market economy. The codes still remain the major source of law in Russia today.

Russia’s judiciary remain principally inquisitorial, where the judge is the central figure in both civil as
well as criminal settings. Often, the litigant’s counsel is marginalised as the Judge questions the
witness. However, the 1993 Constitution does grant citizens the right to an adversarial procedure;
although in practice courts today remain judge-centred and inquisitorial.

Corruption is a big problem in the Russian Judiciary. Due to the law salaries and the irregularity of
wage payments, officials within the legal system are often susceptible to bribes. Many Russian firms
and individuals distrust the police as well as the Judiciary. In fact, it is common wisdom that it is
impossible to do business legally in Russia. Many Russians view the law with cynicism, believing
that the law remains a tool that the state uses to impose its will on society. Many citizens remain
unconvinced of the legitimacy of the law.
The Judiciary

Supreme Court
Constitutional Higher
of the Russian
Court Arbitrazh Court
Federation

Regional and Regional

Appellate
Republican Cassation
Military Courts
Supreme Courts Arbitrazh Courts

Military Appellate
District Courts
Tribunals Arbitrazh Courts

Justice of the
Arbitrazh Courts
Peace Courts

At the first level, Courts of General Jurisdiction have jurisdiction over all cases. These cases begin in
the District courts, which are located in each rural or urban district. On appeal the cases go to
Appellate Courts, which names differ across the country. More serious civil and criminal matters are
heard by these courts in the first instance as well.

Military Tribunals hear cases involving servicemen and certain crimes that raise national security
concerns, as specified by legislation. The decisions of these military Tribunals can be appealed to
appellate military courts.

The Supreme Court of the Russian Federation is the court of last resort for both Appellate and
Military Courts. It is made out of 111 judges, divided into 3 panels: Civil, Criminal and Military. It has
2 basic functions: 1) to supervise the activities of the lower courts 2) to oversee the general
development of judicial practice by periodically issuing guiding explanations of legislation and to
submit draft laws to the legislature.

Due to the sluggish court procedures plaguing the Russian Judiciary and to get cases resolved more
quickly, Justice of the Peace Courts were created in 1998 which assumes responsibility for all
administrative offenses, simple civil disputes and criminal cases that involve less than 2 years
imprisonment. These can be appealed to the district courts.

The Constitutional Court was modelled after the German Federal Constitutional Court, and it
became embroiled in controversies. Yeltsin Suspended the activities of the court in 1993, but was
given new life in the new 1993 Constitution. After this, an effort was made to limit its ability to
become entangled in political questions. It has jurisdiction over 4 categories of cases:

1) Abstract review of the constitutionality of federal laws and other normative acts of the
executive and legislative organs of power
2) Cases involving concrete complaints of violations of constitutional rights by individuals and
legal entities
 3) Jurisdiction over disputes between the subjects of the federation
4) Interpretation of various aspects of the constitution.

Arbitrazh Courts govern economic disputes involving economic entities: sort of like a commercial
court. They were created in response to Russia’s turn toward a market economy in the 90s. They
have jurisdiction over 1) Disputes between legal entities 2) Disputes between Legal entities and the
state and 3) Bankruptcy. At the 1st level of appeal, the appellate Arbitrazh Courts enable a de novo
(fresh) review, heard by a 3 judge panel. The 2 nd level, the Regional Cassation Arbitrazh Courts, is
limited only to errors of law. the Higher Arbitrazh Courts are the courts of last resort for these
issues, where it has the right of abstract review and can also issue interpretations of legislation and
administrative regulations which are binding on arbitrazh courts.

Private Arbitration is also available if the parties consent. The best known private arbitration
tribunal is The International Commercial Arbitration Court, which is located in Moscow and is
affiliated with the Chamber of Commerce and Industry of the Russian Federation.

Judges are appointed by the President, with appoints to the three highest courts having to be
confirmed by the Federation Council. All judges are appointed with life tenure, with no mandatory
retirement age.

Legal Profession and Legal Education (Butler)

The Legal Profession
Two kinds of lawyers: the advocate and the jurisconsult.

An Advocate is an independent adviser on legal questions and does not have the right to engage in
other paid activity except for scholarly, teaching, and other creative activities. Most advocates spend
their time giving legal advice and drafting documents.

Jurisconsults are legal advisers to the President of the Russian Federation, the Russian Government,
the courts, the Federal Assembly, ministries, departments, federal services, and local government
units at all levels, juridical persons, and social organisations. (Government Lawyers)

The Federal Union of Advocates of Russia was created in 1994, to form a college of advocates (like a
law society).

Formed in 2002, The Federal Chambers of Advocates was formed as an all-Russian, non state, non-
commercial organisation for which membership was compulsory for chambers of advocates. The aim
for the federal chambers is to represent and defend the interests of advocates in agencies of State
power and to ensure a high level of legal assistance to clients.

Legal Education
Legal education in Communist Russia was controlled by the USSR People’s Commissariat of Justice,
and featured many Marxist elements.
The switch from a command economy to a market economy resulted in many changes in legal
curriculum. Marxism-Leninism disappeared, and course like tax law, commercial law entered the
picture.

Courses in law take 4-5 years, and assessments are oral based. There are postgraduate programmes.

Judicial Power in Russia: Through the prism of Administrative Justice

(Solomon Jr.)

The article illustrates the struggles faced by the government to give Russian judges the basic
elements of judicial independence.

Judicial power has 3 main dimensions:

1) Jurisdiction: The ability to hear disputes of public importance

2) Discretion: the ability to make significant choices within their jurisdiction of power.
3) Authority: The ability to secure public compliance with judicial decisions. Connected to the
court’s legitimacy.

Russian judges had sufficient discretion to rule against state officials most of the time, and the bulk
of decisions in cases challenging the actions of officials and the legality of regulations and laws were
implemented. Solomon admits that in the space of 20 odd years the Russian Judiciary has gone a
long way.
Autochthonous Legal Traditions 1-
Imperial China
A chthonic legal tradition has no point of origin: No recorded revelation, no dramatic rupture from
other traditions. It simply emerged, as experience grew and orality and memory did their work.

Confusion Li and Law (Bodde & Morris)

Li covered the entire gamut of ceremonial or polite behaviour, secular and religious. It roughly
translates to ‘decorum’ or ‘manners’. This was opposed to the fa, or the black letter law which many
confucianists saw as oppressive.

Confucius argued for the li, and saw the decline of Imperial society as the failure to understand or
live according to li. Legalists, on the other hand, argued for fa, and saw the need for a legal order
due to the chaos generated by the warring states period.

One has to understand that ancient imperial law was harsh, and could easily be seen as distasteful
by followers of the li. Confucians generally distrust the law, and aimed to bring about a society
grounded in li. The legalists saw fa as a way to unify the country and to stabilise it, by imposing harsh
laws to prevent people from breaking it.

Both occupied extreme ends of the spectrum: To follow either completely would be unrealistic.

Eventually when Qin Shi Huang founded the first Chinese Empire, the legalist laws of Qin became the
law of the new empire. In 213 B.C the ‘burning of the books’ were initiated, where the government
ordered the destruction of classical li texts as well as the historical records of states other than Qin.

When Qin Shi Huang died, civil war broke out. The Han dynasty started, and Confucian li replaced
Legalism as the dominant ideology. However the li under the Han dynasty incorporated aspects of
the fa as well. As a result, the Imperial codes of the Han incorporated the principles of li. By the time
the Tang Code came about in 653, the original schism between the li and the fa had closed. The
principles of li manifested in 4 main forms:

1) Letting the Punishment fit the Crime

The Codes endeavoured to anticipate all possible variations of a given offence, and split this
into 3 main categories 1) the motive behind the crime, 2) The familial or social status of the
killer in relation to his victim, 3) the means or situation through which the homicide is
committed. This fit in with the Confucian ideology of maximising justice, by enabling the
law to fit as closely as possible with every foreseeable consequence. In situations where
the circumstance was not covered by the law, judgement by analogy was required, where
the judge would select whatever statute seemed closest to the law and then pronounce the
sentence by analogy. This also allowed the judge to raise or lower what would otherwise be
the statute’s hard and fast penalty.
 2) Differentiation by Social Status
In accordance with the li, the codes provided penalties which differed according to the
relative class status of the offender and his victim. Eg. It was alright for a master to beat his
slave but a slave who beat his master would be subject to decapitation. This was in line with
the particularistic nature of li, where different social groups would be treated differently.

3) Privileged Groups
The codes also recognised entire categories of people as deserving special judicial
treatment, due to their status in society, such as the imperial family, high officials etc. These
people could not be tortured or arrested without permission of the emperor, and their
punishments could be reduced. However, they were also subject to a higher moral standard,
having been expected to know the li and hence they were subject to higher punishments for
certain offences, such as frequenting prostitutes.

4) Differentiation within the Family

The codes also recognised intrafamily distinction based on sex, seniority and degree of
kinship, and prescribed punishments as such. Eg. the mourning period for a father was
longer for an elder son, as opposed to the elder son’s wife. If an older brother beats a
younger brother, he incurs no penalty but if the younger brother beats an older brother he is
subject to harsh punishment.

The idea of fa and li can still be seen today, in the proposal for the Maintenance of Parents Act
where Walter Woon states that the act is a reinforcement of family values, an echo of the li.

Filial Piety
The concept of Filial Piety is central to Chinese Society, and is similarly embedded in the Tang Code.
One example is how Tang Officials, on the death of a parent, have to retire from office during the
entire mourning period of 27 months.

Confucianism also teaches that in a conflict between the state and the family, the family is to come
first. During the Han times, a son who brings an accusation of parental wrongdoing before the
authorities is being unfilial and hence was subject to heavy punishment. The only exception to this
was its denial in cases of treason or rebellion. When these occurred, all close relatives of the
offender were either executed or permanently exiled.

Punishment and the Death Penalty

Concepts of Filial Piety also show through in punishment as well. Eg. a criminal sentenced to death
or long-term servitude can have his sentenced commuted in several ways, if he was the sole support
of his aged and infirm parents, so that he could stay at home to take care of his parents. This was
broadened in 1769 to include criminals who were the sole male heirs of deceased parents so that
they could continue to pay respects to their family.

The Death Penalty had to be confirmed by the highest court in the land and even by the emperor
himself before they could be carried out. Most of the time, the death sentences were delayed till
Autumn, after the Autumn Assizes, where they were often reduced to a lower sentence. Amnesties
also occurred fairly frequently. Confucian principles usually dictated that the aged, young and the
women were permitted the privilege of monetary redemption for many crimes. A criminal who
sincerely confessed his guilt could be eligible for a reduction of punishment as well.

Law Codes in Dynastic China (Head & Wang)

The Qing (different from Qin) dynastic was formed on the ashes of the old Ming dynasty. As a result,
the development of the Qing Code started with the Ming Code, and never departed significantly
from there.

The first Qing Code in 1646 was largely a copy of the Ming Code. Only significant changes were made
after 80 years.

Legal commentaries surrounded around the meaning of a particular statute or set of statutes.

Much of the Qing code was criminal in nature. However, it would be wrong to categorise the Qing
Code as such, because such distinctions did not exist within the Qing Dynasty: All was law. The point
to note is that sometimes legal concepts and terminologies do not translate well across cultures
which are vastly different. the Chinese Code has to be examined on its own terms: Categories of
Western law do not work. This translates back to cultural diversity and the idea that cultures are too
vast for legal transplants to take place.

The Qing Code had no reference to individual rights or liberties. This can be attributed to the vastly
different social settings between the two worlds: Ancient China was governed by a highly centralised
government headed by an absolute ruler: The primary obligation of every Chinese was to fulfil the
duties assigned to him by the Emperor, and everyone knew their place. Hence the only law needed
were the ones that would affect imperial policies. Conversely Europe was still largely fragmented
with a weak government. As a consequence, the legal problems that it dealt with focused on the
disputes between private individuals.

Dynastic codes were different, never intended to draft a complete code, but the same degree of
details can be found. Hence the dynastic code was meant to supplement the older dynastic codes,
as opposed to the French codes, which were meant to completely replace the old code.

Target audience was different: French code was drafted for the layman: German code drafted for
legal professions; Common law drafted for legal profession, Dynastic code drafted for the
magistrates (not legally trained, but only good in lit and art).

The District Magistrate

While he was the lowest ranking officer in the imperial hierarchy, he still played an important role in
Chinese society: he had 2 important responsibilities: Judicial administration and tax collection. He
also had a responsibility to maintain the peace within his district, to serve as the highest judicial
officer, and to ensure the economic well being of the district. It was a cross between being Chief
Justice and Governor.
Magistrates were selected from a classical Chinese education that placed emphasis on Confucian
philosophy and literary and artistic achievement. He was trained in the liberal arts, not the law. This
was in line with the idea that Magistrates had to have a good knowledge of Confucian values and the
li, and people who grasped those concepts well would naturally govern well.

The magistrate office included clerks and runners which assisted the Magistrate in his work. The
Magistrate also had private and legal secretaries.

Litigation masters were imperial china’s equivalent of lawyers. They were considered black sheep,
because they did alot of false claims.

During the Qing dynasty, scriveners existed. They only helped to draft a case, but not to argue it.
They tried to do away with lawyers totally. Scriveners had to be registered, while litigation masters
went under pseudo names. This is why lawyers didn’t really exist in imperial china.

Cases and Judicial Decisions Concerning Marriage (Liang)

Marriage was an important aspect of the Chinese codes since they were closely linked with the idea
of Filial Piety.

Breaking of marriages did not happen. A marriage agreement, irrespective of whether it was made
through a written contract or acceptance of the gift, would be enforced by the magistrate once it
was properly finalised.

While Divorce cases did happen, not a single case of divorce due to mutual dislike was found.
Marriage in China was sustained by responsibility rather than personal feelings.
Autochthonous Legal Traditions 2:
Hindu and Buddhist Law
Hindu Law: Beyond Tradition and Modernity (Menski)
The decline of Hindu Law
At least 800 million people remain formally governed by Hindu Law. Despite its numerous traditional
elements, Hindu law should be seen as a postmodern phenomenon, not mired in the distant past as
what other scholars might think.

The study of Hindu Law has been neglected due to a combination of declining knowledge of its
classical foundations and the pressures of modern political correctness. Many see studying Hindu
law as a regressive activity.

Menski submits that the call for Modernity in India is just ‘thinly veiled pressure to abandon various
indigenous traditions and convert to the supposedly universal idioms of modernity’. It demands the
de-Hinduization and the abandoning of Hindu Customs, habits and traditions, all in the name of
universal legal concepts.

In response to this call for Modernity, some countries have ran the other way, by demonstrating
their presence and religious identity and asserting their socio-religious systems, at times by force.

It does not help that there are scholarly articles which boldly state that Hindu State law enslave
Muslim women, which is completely untrue in reality. these myopic feminist writing ends up
disadvantaging women even more. Feminist writing hence perpetuates this myth that Hindu law
actually protects the interests of the male, where in actual fact this is not the case. As a result,
women are deprived of not knowing what their rights are, and it ends up harming women even
more. Menski submits that this is not true scholarship, but a devious misappropriation of scholarly
privileges.

Another problem is that Hindu law is not treated as actual law, but as mere religion or custom.
Because of this, less emphasis is given to Hindu law. However, Menski submits that the conflicts over
the Shah Bano case and Indian secularity shows that often the lines between law and religious
authority can be blurred. the nature of law itself has a problematic character and Hindu Law can
constitute as law as well. Unfortunately Indian scholarship has been unwilling to develop a critical
analysis as to what is the exact nature of the law and what constitutes law, and hence Hindu law
authority is on the decline.

A postmodern legal analysis

People have started to question whether it is indeed desirable to impose universal ideals of legal
modernity and of secularism, which have led to the postmodernist movement
Postmodernism: The movement generally distrusts objective views about truth; they feel that
reality and truth are in fact socially constructed. Our understanding of what is real does not lie in the
nature of the thing itself, but what we have been taught to think about it as constructed by society.

This necessarily leads to challenging the idea that reason, along with material and scientific progress
always makes a society better off. Post modernism has 3 main propositions:

1) It challenges the claim that there is an objective and universal truth

2) It challenges the supreme ability of reason to know and realise everything
3) It refutes the idea of an objective truth, and posits that different cultures see things
differently(this is the founding genesis of what became the Asian Values Debate)

Linked to postmodernism is the idea of postcolonialism.

Postcolonialism is a form of activist writing that is interdisciplinary and trans-cultural in theory. It

challenges the way our knowledge and realities of civilisation have been constructed to follow a
colonial mindset. It seeks to show that supposedly ‘universal, epistemological models, theories and
concepts’ that are used on Asian and African societies are really not universal at all, but merely
values that are specific to European Society. It is a theoretically and ideologically informed critique
of colonialism/modernity, as much as it is relating a social phenomenon. This train of thought is also
very much present in the Asian values debate.

Postcolonialism’s goal is the undoing of the intellectual sovereignty and dominance of Europe and
a critique of Eurocentrism and Western ethnocentricity.

Postcolonial research into India history showed that the Eurocentric view of Indian society were
actually constructed to reflect colonial prejudices and power ambitions rather than reflecting the
actual realities of Indian society perceived and understood by Indian people themselves. However
the veracity of this information has to be questioned. If proven true however, it is just another piece
of evidence pointing to how different societies just see things differently. Menski also reveals that
current post-colonial writing, basing their finds on negligible analysis of case law, actually end up
perpetrating falsehoods and misrepresentations about Hindu Law.

As a result, Menski leans away from postcolonial analysis, and encourages scholars to adopt a
postmodernist approach towards the study of Hindu Law. It enables people to critically self reflect as
to whether they are approaching Hindu Law with some form of biasness of what the law should
entail. A postmodern legal analysis thus takes a pluralistic approach to law. It recognises the law as
a complex amalgam of state-produced, religious and social rules that are forever in competition
with each other and interact systematically. Law is phenomenally experienced and practiced
differently across time and space, and cannot therefore be understood universally as Western
Style law, or as state law.

Menski then states that the consequence of one adopting a Postmodern legal analysis is the
realisation that Hindu Law cannot be ‘bad’ law: it is similarly law that is just as legitimate as
western law or state law.
Hindu Law beyond Tradition and Modernity
Menski submits that Hindu Law, as the dominant Indian personal law, has continued to play a key
role in the development of the Indian legal system, and will continue to do so. Hindu law is a legal
reality that cannot be ignored. It is not as incompatible with Indian state law and the constitution:
most of the time they intertwine very well. Hindu Law has survived and will continue to survive,
despite numerous modernist attempts to do away with it. It did this by going underground,
populating the realm of the unofficial law. People who continue to marginalise non Western law and
to treat it with disdain do so at their own peril, because the current trend is tending towards a
postmodern rather than a modernist analysis of the law. Hindu law should not be understood as a
custom, but as a postmodern phenomenon.

In conclusion, Menski argues for a more critical, postmodern engagement with Hindu Law, and to
shy away from outdated modernist thinking of what the law should be.

Cases on Indian Law

Nagammal v. Suppiah: an example of a case where a colonial judge tries to apply a western mindset
to Hindu law, and tries to incorporate it into the existing modernist law. He states that for a British
Court to accept a custom as law, it must be 1) clearly proven 2) definite and 3) reasonable.

It is likely that Menski would propose the adoption of Hindu law wholesale, rather than subjecting it
to the rules for whether it could be adopted.

Soniya Chataram Aswani v. Haresh Jaikishin Buxani: where the court affirmed that the Women’s
Charter now governed all marriages in Singapore, that people of every faith except Muslims were no
longer governed by their own personal law. It is an example of Menski’s ‘modernist attack’ on native
law and custom. Singapore might argue saying that the Women’s Charter is a bid to standardise and
unify Singaporeans, but Menski would probably counter by saying that this would just be an
enforcement of modernist principles of unification and standardisation.

Mohd Ahmed Khan v. Shah Bano Begum and Ors (The Shah Bano Case): Controversial case in India.
Shah Bano, a 62 year old Muslim woman and mother of five, was divorced by her husband in 1978.
Because she had no means to support herself and her children, she approached the courts for
securing maintenance from her husband. The supreme court of India granted her application, which
resulted in an uproar from the Muslim community, which saw it as an encroachment onto Muslim
law. Because of the uproar, Indian Parliament passed a law nullifying the Shah Bano decision. This
led to further uproar from the in India, with people saying that the government was subject to
pressure from Muslim minorities. It was a gigantic SNAFU.

Buddhist Law as a Religious System (Huxley)

There are 3 main traditions of Buddhism: Tibetan, Chinese and Pali.

Chinese and other east Asian monks follow the dharmagupta vinaya, Tibetan and other central Asian
monks follow the Mulasarvastivada vinaya, Southeast Asian and Sri Lankan Monks follow the Pali
vinaya. Buddhist law generally comes from the Pali tradition.
The teachings of Buddhism are made of the Suttas, the Vinaya and the Abidhamma.

The Vinaya dictates how the monks live and are organised.

From the Vinaya, we have the Khandhaka, and the Suttavibhanga

Khandhaka tells monasteries how to act collectively

Suttavibhanga tells monasteries how to deal with offences.

Khandhaka + Suttavibhanga give you the Dhammasat, the virtues that a king should live and govern
by.

The dhammasat is religious law, Buddhist law.

Huxley tries to answer whether Buddhism should be considered a religion, and whether Buddhist
law should be considered religious law. He runs into problems, because Buddhism, while lacking the
veneration of deities and gods, treat the Buddha like a living saint. Buddhism becomes more of a
philosophy, but as ritual practice, Buddhism looks religious. He concludes that the further on travels
from Europe, the less useful religion is as a comparative tool.

Thai Law and Buddhist Law (Sucharitkul)

The three seals code was completed in 1805. It was a compilation and collation of existing statutes,
edicts and known Thai customs, grouped in a systematically classified order. This was applied and in
force until 1897, where another law reform commission undertook another codification of Thai laws,
including a Penal Code, a code of Civil Procedure, a civil and commercial code as well as a statute on
the courts of justice.

In Thailand, Buddhism and state law coexist very well, almost to a state of symbiotic
interdependence, ever since the reception of Buddhism in the country itself. It is even reflected in
the colours of the state flag: red for the nation, white for Buddhism, and blue for the monarchy. The
interdependence of both institutions manifests themselves in the Thai legal system which shows
elements of Buddhist influence. One example would be Ancient Lanna Thai law, which was created
from the Vinaya. Many of its penal provisions are drawn from the Vinaya.

Buddhism does not just manifest in the legal system. It is also Thai custom for every able-bodied
male of 20 years old to enter a monastery as a novice, where they learn to reach maturity.

The Constitution also upholds Buddhism as the state religion, and also requires that the King of
Thailand be a Buddhist and an upholder of the Buddhist faith. Royal ceremonies and state functions
invariably include active presence and participation by high ranking monks. The civil law, particularly
the law of persons, family law, the law of properties and the law of transactions and obligations
are all infused with Buddhist principles.

Thailand follows the civil law tradition. Codification was a tempting option for King Chulalornkong,
due to the presence of several Thai codes already in the country, as well as the fact that it was
harder to import the common law into Thailand. The English common law does not easily lend itself
to be translated. You have to take the WHOLE common law tradition, including ALL the English cases,
English decisions, as opposed to the civil law, where all you need to do is transplant the codification
process and apply it to your existing laws.
The Islamic Legal Tradition
Islam is very pluralistic in nature.

Legal pluralism is the existence of multiple legal systems within one geographic area. Legal
pluralism also occurs when different laws govern different groups within a country. It also exists to
an extent in societies where the legal systems of the indigenous population have been given some
recognition.

Legal pluralism can occur in 1) a country 2) a region 3) a continent 4) a society.

Islam in World Cultures (Feener)

Islam has no central religious authority. It is up to the individual to interpret the Koran. The Koran is
not arranged in chronological order, but in decreasing length of 114 chapters. The Koran is made up
of 114 collected revelations received by Muhammad during the course of his life.

The 5 pillars of Islam

Central to the tenets of Islam are the ‘five pillars’ of Islam, doctrines which all Muslims observe. They
are:

1) Shahada, or ‘witnessing’ to the faith.

2) Salat, the obligatory daily prayers
3) Zakat, almsgiving
4) Sawm, fasting
5) Hajj, the pilgrimage.

Shahada is the witnessing of the faith: it is more than just a statement of belief. It identifies oneself
as a member of the Muslim community. One becomes a Muslim by pronouncing, with the proper
intention, the words of an Arabic formula that translates to ‘There is no god but God, and
Muhammad is his messenger.’

Salat is the obligatory daily prayers that Muslims perform at 5 set times a day: Dawn, midday, mid-
afternoon, sunset and night. Salat may be performed individually or communally, although
communal prayer is generally regarded as more meritorious. The prayers consist of a standard set of
verbal formulas recited in Arabic to which are added short readings from the Quran.

Zakat is linked to the real world responsibility for the welfare of their communities. It involves the
redistribution of the material resources of Muslim communities for the physical and social benefits
of the public at large. Muslims who have more than they need for basic substances are obliged to
give a portion of their surplus for the good of their neighbours. In practice, most Muslims give zakat
during the last days of Ramadan.

Sawm, fasting, entails abstaining from all food, drink and physical pleasure from sunrise to sunset in
the holy month of Ramadan. It is a holy month for Muslims to gather. The end of Ramadan is usually
marked with great celebration.
Hajj, the pilgrimage is something that all Muslims should try to do, at least once in their lifetime.
Only a pilgrimage made to Mecca at the appointed season is considered a hajj.

The law of Islam, Shariah Law, was rarely the sole legal standard in Islamic lands, and it was applied
selectively by most of the major Muslim empires. Because Islam had no central authority, Shariah
law was often interpreted differently across many jurisdictions, including many institutions that were
outside of state control. However as the Ottoman Empire grew, it started to unify and centralise
Islamic law, setting a precedent that has been followed up till this day.

Islam, the second largest religion in the world after Christianity, is spread across so many regions in
so many different sectors of the world, which has resulted in many different schools of thought and
interpretation of the Koran. It is full of cultural diversity and richness. Any generalisation about
Islam should hence be viewed critically, due to its rich diversity.

Modern Islam
A new movement centring around the politicising of Islam has arisen in the past 20 years. Scholars
refer to this as ‘Islamism’, which should not be confused with Islam as a whole. Islamism is seen as a
political ideology more than a mere religion, arising in a time of growing unrest and uncertainty.
Especially in the Middle east, where conditions led Muslims to turn towards more ‘revolutionary’
forms of Islamism, such as the Iranian Revolution of 1979. In the late 20 th and early 21st century Islam
has become increasing politicised in many parts of the world.

One has to understand that there is much more to islam than the current politicised ones
constantly in the media.

An introduction to Islamic Law (Hallaq)

4 schools of thought: Hanafi(dominant in india, Pakistan), Maliki(dominant in Africa), Hanbali(Saudi
Arabia), Shaf’i(Singapore).

Islam accommodates different viewpoints, since there is no central religious authority, which
enables islam to flourish and adapt itself to different circumstances.

Legal pluralism is present in the Shariah Law: there exist many different legal systems present in the
religion. The 4 main schools of thought are listed above. However, Pluralism, while allowing Islam to
be flexible and adaptive, also makes it decentralised.

When the colonial powers colonised Islamic states, Shariah law was saved from eradication because
they thought it to be no use to them as a tool of domination. Recognising that Shariah law was
sacred to Muslims, they also generally left it alone.

The Colonial Powers, when colonising the Islamic states, often imposed the civil law on them rather
than the common law model. This was because case law is a diffused phenomenon, lacking in
concentricity and a clear voice of authority as opposed to a singular, universal civil code. Even the
British resorted to civil codes when colonising states, egg. the implementation of the Indian Penal
Code. Correspondingly, Shariah principles influenced the codes of those Islamic countries. Many
Shariah principles were integrated into these Muslim countries through their civil law, most notably
the old Ottoman Empire.
Administration of Muslim Law Act (Cap. 3)

Chiefly deals with 7 main things in Muslim personal law:

1) Establishing of the Majlis, an administrative body in charge of all Muslims in Singapore

2) Establishing the Shariah Court, the Court governing Muslim law as applicable under the act
as well as its jurisdictions
3) Organising of the General Endowment Fund for the purposes of Wakaf
4) Establishing and setting out the procedures for Madrasahs
5) Establishing Halal and Haj matters
6) Deals and sets out the relevant law on Marriage and Divorce
7) Sets out the relevant law on Property and inheritance
8) Sets out the law pertaining to Religious Conversions

S 114 sets out what sources and authorities the Court may rely on as proof of what constitutes
Islamic law.

Entries (d) and (e) refer the courts to Anglo Muhammadan law.

Anglo Muhammadan law is the resulting amalgamation of English and Islamic law principles, which
were created during the English colonisation of Islamic states. The English, in bringing a centralised
system of government to the colonies, applied English legal reasoning to Shariah Law: As a result,
Shariah law, which used to be flexible and pluralistic, was greatly altered and pruned by the British.
One good example was the idea of stare decisis, a concept alien to shariah law, to which it was
applied indiscriminately by the British. As a result, Shariah law under the British lost much of its
original flexibility, becoming Anglo Muhammadan law.

The authorities listed in s 114 are mostly written by British Authors, merely secondary sources of
authority. Entry e) is a digest of anglo-muhammadan law. This might result in the Singapore
Government further distorting Shariah law, because we are not referring to primary authorities of
shariah law. This relates to falling into one of the perils of comparative law Alan Watson wrote about
in his first chapter.

Shariah Law in Singapore

Chaytor v. Zaleha bte A Rahman

A possible misapplication of Shariah Law in Singapore. The issue was whether a woman against
whom a talaq has been pronounced still considered a married woman.

Lai Siu Chiu states that whether a Muslim woman is married or single is determined by the shariah
court. Unless the shariah courts pronounce the Muslim marriage void, the civil courts should state it
is still valid. Hence She invokes a presumption of continuing validity of marriage when 1) the talak
has been pronounced, 2) sharia court verdict is still pending.
This is completely inconsistent with shariah law. Under Shariah Law, when a talak is announced by
the husband, it is void straight away.

Lai Siu Chiu then turns to AMLA, and states that a married woman against whom a talak has been
pronounced is nonetheless a married woman under s 47-49 of the AMLA. But she then continues to
say that for the purposes of the entire AMLA, a woman whom against a talak is pronounced is still
married.

Why did she extend the definition for the entire AMLA? This remark should be regarded as obiter
dicta anyway, and should not be binding.

The Court of Appeal has recently stated in a decision that a fatwa, or religious opinion on Islamic
law will not bind the court. In fact, it would only be considered as expert opinion rather than formal
law. The decision was made in the area of Property Law, in the context of joint tenancies. However it
is unclear as to whether the Court of Appeal will extend this definition to encompass other areas
of law. The court has also not remarked on how much weightage it will give to a fatwa as expert
opinion. One can understand the CA’s decision since to include another exception in property law in
the area of Joint Tenancies would result in alot of unnecessary complications. One should not see
the article as the herald of the decline of Shariah law in Singapore, but rather as the Court
upholding common property law rules which are similar entrenched in our legal system.
Legal Transplants
The borrowing of a legal rule from a donor country to a recipient country.

Alan Watson publishes a paper on Legal Transplants, which shows that most legal developments in
history occurred by cultures simply borrowing legal codes from each other. He notes the codification
of Roman law, and states that when countries articulate law, they don’t make their own law, but just
borrow law from other countries. Eg: Turkey who decides they want a modern legal code, but they
just borrow Switzerland’s one, since they happen to have someone who studied law in Switzerland
in the government.

He draws an example of how similar laws have appeared in The Laws of Eshunna(18 th Century B.C
city), The Babylonian Code of Hammurabi(17 th Century B.C), Exodus from the Bible. He cites another
strong link between the Twelve Tables in Roman Law and the early Greek law codes.

He is saying that cultural differences do not matter, and not culture itself, and that the differences
are not that great, which is why they can be transplanted in the first place. He makes several points:

1) That successful legal transplants can successfully grow in the transplanted legal body until it
becomes part of the body through subsequent development.
2) Transplanting individual rules are extremely common.
3) Transplanting is often the most fertile source of development: most changes in most
systems are the result of borrowing.
4) Transplanting of legal rules is socially easy, even when the rules come from a very different
legal system, because many legal rules hardly affect individuals in society anyway.
5) A voluntary transplant involves a change in the law transplanted.
6) No area of private law can be designated as extremely resistant to foreign influence.
7) The transplanted law is often changed, amended or reformed at the time of inception.
8) Reception is possible and still easy when the receiving society is much less advanced
materially and culturally.
9) Once a law is invented, people can see their value and hence laws can spread easily across
nations.

The implication of this is that laws created by other nations can be properly and safely assimilated
into a society that is vastly different. As a result, Asian values are no big impediment to the
assimilation of laws created by western countries for the advancement of Human Rights.

Legal Transplants (Alan Watson)

Alan Watson posits 3 main things:

1) Transplants can occur independently of the needs of recipient countries, or the quality of
the legal rules. It can depend on several other factors as well.
2) Legal rules are mobile in nature.
3) Different Contexts can house different rules.
 The laws of the Roman Empire and The French Republic were received by many jurisdictions,
and a reason for that may have been the respect they received from other jurisdictions. Other
countries saw them as powerful countries with a strong, stable and highly articulate legal code,
and sought to copy that as well.

National Pride might determine that borrowings should be made, or restricted from some
particular system. As a result, that particular jurisdiction might come up with its own laws, or
borrow them from another jurisdiction. e.g. The Scottish, as a matter of national pride, have
always resisted joining the English law commission in joint law exercises, because the Scottish
see themselves as very distinct and separate from the English. The Scottish pride themselves on
being radically different from England, and hence do not want to adopt English legal principles.

The language and accessibility of the law also plays a part in choosing whether or not to import
it. For instance, the Corpus Juris Civilis was in Latin, a language known to all learned men back in
the middle ages, which made Roman law easy to transplant across the European provinces then.
Also, Lord Blackstone’s Commentaries on the Laws of England were easily transplanted in the
United States because they were in English and also incredibly detailed. At the same time,
because the language in Quebec and Louisiana remained French, it was easier for them to adopt
the civil law system.

Another factor would be the past history between the donor and recipient jurisdictions.
Countries in South Africa and Asia are either common law or civil law jurisdictions, depending on
who was the colonising power in the 19th Century.

The connection of a legal rule with any one environment is less intimate than one may
supposed. Alan Watson gives examples of how 1 particular rule can be found in Visigothic Spain,
post-mediaeval Germany and 19th Century California.

The Reply to Legal Transplants

Watson’s article on Legal Transplants draws attention from the Academic World, and 3 people
challenge him: Pierre Legrand, Gunther Teubner, and Maximo Languer.

The Impossibility of Legal Transplants (Legrand)

Postmodernism and proponents of the Asian Values debate do not take this lying down, and Pierre
Legrand writes a reply.

He states that the law does not comprise of just the rules stated by Watson, and that the meaning of
the rule is an essential component of the rule.

This meaning of the rule is a function of the interpreter’s epistemological assumptions which are
themselves historically and culturally conditioned- it is an incorporative cultural form: essentially
the meaning of a rule comes from the context of the society it is taken from. A rule encompasses
both its words, as well as the underlying social, cultural factors that it embodies. One culture
interprets a rule differently from another culture.
Hence, a legal transplant is only successful if it takes both the words of the rule as well as the
surrounding cultural context in which it embodies. This is impossible because different societies will
end up interpreting the words of the rule differently and hence the underlying cultural context of
the rule will be different in different societies, even if the words are the same. The imported words
are ascribed a different, local meaning in the host country and hence becomes a different rule.

The legal transplant does not happen because the meaning of the rule, which Legrand considers to
be the substantial part of the rule, does not cross over into the host culture. All that Watson can
claim is that law reformers on occasion find it convenient to borrow pre-existing forms of words
which may have happened to be formed outside their jurisdictions. They are borrowing merely the
empty shell. It’s like quoting an author.

But at the end of the day, aren’t Legrand and Watson merely arguing about the extent of the cultural
gap between societies? Essentially Watson is saying the gap is not really that wide, and Legrand is
saying that it is.

Legal Irritants (Gunther Teubner)

Teubner challenges Watson’s idea that legal rules can be easily transplanted. He writes about the
concept of Legal Irritants, about the process of a recipient country incorporating a transplanted legal
rule.

When a foreign rule is imposed on a domestic culture, it is not transplanted into another organism,
rather it works as a fundamental irritation which triggers a whole series of new and unexpected
events. It irritates law's binding arrangements with other social sectors. Legal Transplants cannot
be domesticated, they are not transformed from something alien into something familiar, not
adapted to a new cultural context, rather they will unleash an evolutionary dynamics in which the
external rule's meaning will be reconstructed anew and the internal context will undergo
fundamental change.

He uses an example of the transplanting of the concept of ‘bona fides’ from the 1994 European
Consumer Protection Directive directly into British Contract law, which has caused alot of irritation
due to the stark differences in Jurisdictions.

He essentially posits that the inception of a new legal rule into another country’s jurisdiction causes
a string of mutations within the jurisdiction, which ends up fundamentally changing both the
transplanted rule as well as the system itself. It does not incorporate the new rule: rather, it ends
up mutating the whole system. (it’s like inception: the planting of an idea changes people drastically,
you are no longer the same person)

He also writes that legal rules have a legal as well as socio-economic effect. The effect of the
transplanted rules will general legal and social discourse, will in turn affect the transplanted legal
rule, which generates a new form of discourse. This cycle continues until a stage of equilibrium is
reached, where at the point both the system and the legal rule will have changed drastically.

Good examples of Legal irritants would be the inception of the US model of governance by South
Korea, which ended up creating alot of chaos in the system, with the end result of the South Korean
model being different from the US model, as well as the incorporation of the Code Napoleon in
Japan, which resulted in alot of unrest and ultimately changed the law itself.

Because of Legal Irritants, a transplanted law, once transplanted in another Jurisdiction, will no
longer be the same law, and the Jurisdiction will not be the same Jurisdiction: Both will be
fundamentally altered, and hence legal transplants will not occur.

However, teubner’s examples all involve the transplanting of different rules across vastly different
Jurisdictions: Korea and Japan are very culturally different from the US and France. It might be fair
to qualify Teubner’s thesis as only applying when the transplanting process occurs across societies
with vastly different cultures.

Legal Translations (Maximo Langer)

Maximo Langer attacks the translation process described by Alan Watson.

He states that Watson fails to account for the fact that legal rules and their meaning are necessarily
altered when they are transplanted across Jurisdictions. Different Countries, due to their different
social and cultural values, will necessarily interpret the rule differently. This is similar to what
Legrand is saying, and bears some postmodernist influence.

As a result, Legal Transplants are a misnomer: what is actually happening is a legal translation. Legal
transplants fail to capture the subtleties and nuances that a law has on a society.

Comparative Law and Legal Transplantation in South East Asia

(Harding)
South East Asia is a very large, very diverse region where several countries all have vastly different
jurisdictions. There is very little uniformity, and relatively little legal literature as compared to other
regions like Europe.

Legal Pluralism is clearly present in SEA: there appears to be very little uniformity within the
different Southeast Asian countries, as compared to Europe or the West. Hence it is almost
impossible to draw some general description of the law in SEA.

SEA is also very much in flux: Social, Economic and Political events take place frequently in SEA,
which results in the region being in a permanent state of flux.

Laws in SEA are usually an accretion of layers of law and legal culture. Due to the diverse and strong
cultural background in Southeast Asian states, the imposition of European law becomes extremely
complicated, as the colonial powers tried to impose a set of laws workable to all the cultures in that
society.

Because of the role of legal transplantation, SEA is an important and promising locus for comparative
socio-legal study. Due to legal pluralism, absorption of legal ideas, even imposed ones, takes place
over time, slowly and even painfully.

Despite the pluralistic nature of Southeast Asian societies, legal transplantation has occurred.
Harding is of the opinion that SEA is now in a ‘post-western’ stage, where Western values have been
transplanted, but states are now moving on from that point, and possibly towards the development
of a regional identity.

A Brief History of Legal Transplantation into Vietnam

Vietnam was originally dominated by the Chinese in 111 BC. Chinese political legal ideas influenced
Vietnamese legal thinking and practices. However, the influence did not penetrate the society fully:
The Chinese ruled urban centres, leaving ethnic Vietnamese in control of the villages and
communes. Also, language barriers prevented most villagers from gaining a deep understanding of
Chinese cultures. Nevertheless over 10 centuries of Chinese domination transplanted Confucian,
Buddhist and Taoist values successfully into Vietnamese society.

Following independence in 939Ad, the Ly dynasty embarked on a period of national reconstruction

in which Buddhism challenged the rather weak Confucian hierarchical structures. After 1000 years of
domination, Chinese knowledge was the natural cultural and legal reference point for the
Vietnamese dynasties. Vietnamese emperors thus applied a Sino-Vietnamese version of virtue rule
and legal rule. Legalist thinking clearly influenced Le and Nguyen rulers, as seen in the meticulous
attention given to the developing legal codes.

The Nguyen dynasty borrowed heavily from the Qing Code to establish its legal code which was
implemented in 1815. All but one of its articles were either identical or closely based on Qing code
articles. Principles such as ‘judgement by analogy’ were also implemented.

This continued under 1862 where the French colonised Vietnam. They implemented the idea of
Legal Collaboration, which allowed the metropolitan French legal system to coexist with the
modified pre-colonial administration.

In 1880, a Vietnamese committee was convened to draft a Vietnamese civil code that reflected
indigenous social and commercial practices, that drew from the Le and Nguyen codes. The French
took offense to this since they considered Vietnamese legal culture repugnant to civilised practice.
Eventually a compromise was reached, amalgamating French Civil Code provisions with indigenous
provisions.

After independence from France, Vietnam turned towards the communist regime. They adopted the
Soviet model of government. In 1959 the Supreme Court prohibited the use of French colonial laws
and practices. Many French lawyers were purged, the rest were viewed with suspicion.

The 1959 Constitution formalised the socialist political-legal structure. After reunification in 1975,
northern laws and political-legal institutions were transplanted to the South. However, many people
within the party were calling for reforms due to the decline of the economy in Vietnam.

In the early 1990s, doi moi reforms were instituted, promoting 3 policy objectives:

1) Transforming Vietnam’s highly centralised economy based on state ownership of the means
of production, into a multi-sectored economy.
2) Normalising social and economic transactions through legal, rather than ideological and
moral apparatuses
 3) Pursuing an ‘open door’ policy, fostering cooperation and trading relationships between
Vietnam and other countries.

Market-orientated laws were enacted. Vietnam considered laws from both China and the Soviet
Union, but in the end turned to the French, because the Chinese lacked a suitable company law
model. Generally western legal sources were not considered politically and constitutionally
acceptable. However as international economic integration gained political momentum, lawmakers
increasingly borrowed laws directly from capitalist countries. As of today, compliance rules under
bilateral and multilateral trade agreements have greatly influenced Vietnam’s commercial reforms.

It is interesting to note that Western liberal rights-based laws, comprehensively rejected by the pre
doi moi elite, have in less than 2 decades become guiding principles in commercial laws.

It seems that the main reason Vietnam incorporated Liberal economic laws were due to the need
to improve its economy. It had economic reasons for legal transplantation.

Legal Formants (Sacco)

Sacco writes about what exactly makes up a legal system. He describes them as legal formants:
principles inherent in a system that manifest themselves during judicial decisions. E.g. the reasons a
Judge cites before coming to a particular judicial decision are the legal formants of the system.

Legal formants are the abstract notions that guide a legal system, they are what make a legal
system produce a particular result: As a result, if 2 systems use different legal formants to come to
an identical system, they should still not be treated as the same decision.

Eg. Islam is a legal formant of Shariah law. It would be impossible to explain shariah law without
invoking tenets of Islam and the Koran. Marxism is a legal formant of Soviet law because its
principles are so firmly embedded within the legal system.

Legal formants and their comparative importance vary greatly across systems. Their impact is also
determined by how they are interpreted: Legal formants which are interpreted wrongly or
differently will correspondingly affect a system differently. In the context of comparative law, a
comparative scholar will have difficulty grasping a legal formant that is not native to his jurisdiction,
which is what makes comparative law so difficult.

Legal formants are recorded in statutes, Judicial Decisions and scholarly writings. Yet they are not
legal formants, but are declaratory statements, stating what the legal formants are. The list of legal
formants in a system is not exhaustive: Sacco does not attempt to find them, but merely to point to
the fact that they exist. He submits that the purpose of comparative law is to uncover and compare
the legal formants of different jurisdictions, to acquire knowledge of the different rules and
institutions that are compared.

The idea of legal formants bears some similarity to Ronald Dworkin’s idea of ‘principles’ that lie
behind the black letter law, principles that Judges weigh out in order to come to a decision. This is
also in contrast to proponents of Realism, who distrust the idea that underlying principles in the law
are the substantive factor that results in a court decision. Proponents of Realism submit that in
actual fact, the personality of the Judge was the pivotal factor in legal administration, and that law
varies with the personality of the judge who happens to pass on any given case. Rules are merely
the means by which judges justified a result they had previously reached on the basis of intuitive
‘hunches’. There is no such thing as ‘principles’ or ‘legal formants’: A decision can depend on what
that Judge ate for breakfast.

Asian Adaptation of Foreign Law

Looks at the effect of transplanting Western laws in Asian Jurisdictions, with emphasis on China,
Japan and Korea.

The Historical Development of the Civil Law tradition in China: a

private law perspective (Chen Lei)

The Chinese economy began to improve in the last decade of the Qin Dynasty, as China was forced
to open up to the Western powers. A new class of the liberal bourgeoisie emerged, calling for the
recognition of their social status and better protection of their wealth. These economic factors
initiated the legal reform in the last decades of the Qin dynasty. The Qin government hoped to
develop a new order based on western law.

Further political reasons led to the Government establishing the Law Codification Commission in
1902, which was entrusted to carefully and selectively revise Chinese laws with reference to western
legal systems after in-depth deliberation. With that, the commission revised the feudal Qing code
into a more modern criminal law, and simultaneously drafted a separate civil code called the ‘Draft
Civil Code of the Great Qing’. The code used the archetype of the German model, via Japan.

Chen Lei submits that it was almost impossible for China, with a wealthy tradition of 2000 years of
relying on code-based books like the precepts of Confucius, to have turned to the common law. This
can also be due to the fact that when importing the common law, one also has to import all the
landmark decisions along with it. The common law was only imported in undeveloped areas that
had no legal institutions or processes. E.g. Hong Kong, which in the middle of the 19 th century was
only a small village with a primitive and almost undeveloped legal system far from the control of the
Chinese Government. This allowed the British Government to introduce common law without much
difficulty. In addition, the individualistic nature of common law systems did not mix well with
Chinese communitarian values. The status of the British Government was also declining, which made
the common law less influential. Lastly, china’s lack of judicial profession(there was no legal
fraternity in China, recall that the magistrates only studied the liberal arts) made it difficult to
impose a common law regime.

China also identified itself quite closely with the civil law system, since both systems involved a
uniform legal code applicable throughout the country as well as a strong central authority that
lorded over its citizens. The civil law’s principle of pater familias also fit in well with China’s family
orientated values. Geopolitical reasons also played a part in choosing the civil law: Japan had also
adopted the civil code, and was quickly becoming a rising power. It would have been convenient to
send Chinese students to Japan to study modern law. Japan was seen by china as a successful
adaptation of the civil law tradition in a Far Eastern society.

The new Qing Code separated Criminal and Civil matters for the first time in Chinese History.
However, it still regarded Civil law matters as being inconsequential. Civil matters however, were
regulated in a sense of what was forbidden rather than what was allowed.

The new civil code was opposed by many cultural conservatives, which saw the code as shaking the
traditional values of Confucian Society. With such opposition, legal reform could not be successful.

The Kuomintang era

When the KMT took over, they initiated another civil code drafting committee to draft a civil code,
although it was not until 1930 that the first Chinese Civil Code was promulgated. Having re-examined
the Qing’s draft civil code, the Drafting committee drew inspiration from Roman law countries such
as Germany, Japan and Switzerland to develop legislation.

The Kuomintang code still held the utilitarian principles of social harmony over absolutist individual
rights: they took a ‘broad lines ‘ approach, taking foreign law and adapting it to their own use. Other
than this distinction, the structure was exactly the same as the Qing code and passed down from the
German Model, and was virtually similar to the German model.

The KMT civil code was also cumulative rather than eradicative in nature: it did not seek to cause a
break with Chinese legal tradition. Instead what it did was integrate both Chinese and Western legal
traditions while streamlining unneeded principles.

The Mao Era

When the PRC was founded in 1949 after overthrowing the KMT regime, the Communist Central
Committee announced the abolishment of the KMT’s legal system and established ‘ the Judicial
principles in the liberated areas. It declared that the judicial work of the people should no longer be
based on the collection but should be based on people’s new laws. Most laws relating to private law
and especially property law were repealed without being replaced. All land was owned by either the
state or was owned collectively.

In 1979 the legislature committee of the NOC organised a civil code drafting group in 1979. A draft
was finished in 1982. In April 12 1986 the 4 NPC enacted the principles of Civil law, a hallmark in
China’s civil law reconstruction. A system of economic regulations similar to post-war Hungary and
Poland was constructed. It is still in effect today, where it is now considered outdated and overly
simple, unable to meet the needs of an ever changing and fast growing economy.

In 2007, a property law code was drafted, with influences from Germany, Japan and Taiwan. It is
markedly similar to continental European Civil Codes, although it was also influenced by the
common law, and initiated a Torrens land registration system.

All in all, while China initially borrowed legal codes from Germany and Japan, due to many different
reasons, it has begun to adopt principles and influences from common law jurisdictions as well.
Overview of Japanese Legal History (Nottage)
Japanese cultural values generally echo that of China, emphasizing family ties over that of the
individual. It was influenced strongly by China prior to the Tokugawa Era.

Japan only assumed statehood during the Taika Era where reformations were effected on the whole
country. The ritsu-ry system of legal codes were developed and promulgated. Buddhism was
established as the state religion after the religious war of 587 A.D.

Under the Taika reform, a hierarchical distinction among government officials were instituted, and a
17 article constitution was enacted. It also abolished estates formerly owned by large clans and
vested all land ownership and power of governance in the state. It also authorised tax collection and
the payment of salaries of all court officials. The Ritsu-ry reform took things even further, instituting
a rudimentary constitutional law, in addition to a penal law, military law, law for communication, law
regarding public ceremonies, law for slaves and land law. Legal Codes were adopted, but like the
Tang or Qing code, most of them were penal in nature, with very few rules on civil law.

However, the ritsu ry laws were very different from the Tang legal codes from which they were
modelled upon. The Tang system was based on a meritocracy, with people being given positions
based on their placing at an imperial examination, while in Japan a hereditary system for political
office was developed. Also in the Tang code, the amount of land that an individual could hold was
limited by law, whereas in Japan ownership of land was not limited and the state actively sanctioned
the reclamation of uncultivated lands for private ownership.

Under the ritsu ry laws, the military manipulated the parts of the Code by which they were given
power, and hence vastly expanded their political control and influence. One example was the
Kamakura Shogunate, which used the codes to legitimize the extension of its right to place all police
and military agents under its control. It also issued its own legal code to perpetuate shogunate
control after the death of its founding leaders.

In 1639, the Exclusion Edict was issued, and Japan virtually closed itself off from the rest of the
world for nearly 200 years. Japan’s legal system developed in many ways, based around a neo-
Confucian model of a hereditary, four class feudal society with the samurai at the highest position,
then farmers, artisans and merchants. Political regulations fostered the unity of the state, and
centralised control in the feudal bakuhan feudal system. The emperor was established as a non-
political institution and regulated the Imperial Court(resembling the Westminster System). The
Tokugawan system was rigidly hierarchical.

Commercial law was developed largely through the private merchant guilds and associations that
governed merchant-to-merchant commercial transactions. Principles such as limited liability and
transferability of shares could be found. Rudimentary banking functions were performed as well. The
idea of both contract and intellectual property was widely understood, and written contracts were
used extensively, and for the most part, honoured.

Dispute resolution formed a large aspect of society in Tokugawa Japan: Leaders were expected to
maintain the peace in his group: failure to do so externally would be seen as a sign of incompetence.
Leaders were also responsible for the acts of their subordinates. Another principle of dispute
resolution during the period was the idea that inferiors should not generally sue superiors. A public,
visible dispute in any form was seen as a rift in the social fabric that should be settled quickly as
possible. The ultimate goal of the system was to maintain social and political order and control.

The Meiji Era and Western Influence

The collapse of the bafuku government and the arrival of the superior Western powers prompted
Japan to institute legal change again. Japan was eager to show the Western Powers that it could
quickly adapt and westernize. There were attempts to reform the legal codes and unify it into a
single civil code.

Experiments began with the choice of a French styled Civil Code. However it finally chose to go with
the German legal code. The whole importation was quick and slip short, with translations often
being done quickly and imprecisely, with little understanding of the words and concepts being
translated. There was very little concern about what was being translated, save for what was going
on in Family law(see earlier readings). This was due to the fact that their primary aim was the
importing of a workable system rather than the adoption of specific principles. This made the
adoption of the code substantially quicker, and set the structures into operation very quickly.

In 1889, the constitution of the Japanese Empire was created, which was largely based on the
Prussian Constitution. It was promulgated as a gift from the Emperor to the people, and provided for
a constitutional monarchy along Prussian lines.

A proper Japanese Civil code in the Meiji Era began with the drafting of a Civil Code along the lines of
the Code Napoleon, which was enacted in 1890. It went into effect in 1893, only to be suspended
soon after, due to the objections it made to Family law. (see earlier readings.)

The Influence of US Constitutional Law Doctrines in Korea ( Kim &

Lee)
The long legal development of Korea shows that Legal rules and models can be duplicated, but that
doesn’t mean you can duplicate the conditions that allow the model and rules to flourish.

After WW2 Korea recovered her sovereignty after 36 years of Japanese colonial rule. In 1948 the
southern part of Korea was administered by the US military government in Korea, while North Korea
was ruled by Soviet administration. The USSR declined to allow free elections in the north, and it
stays that way until today.

The 1st South Korean constitution however, was closely modelled after the US model, and took effect
on July 17th 1948. The US military administration, wanting to impart the concept of judicial review in
Korea, gave the Judiciary sole power to adjudicate all actions, including administrative ones.
However, 2 aspects of the US model were not adopted: Bi-cameralism and judicial review. A strong
presidency became the basis of the structure, at the insistence of Dr Syngman rhee, the strongest
candidate for president. The Presidential System( as opposed to the Parliamentary System) was
implemented in South Korea, mainly due to Dr Rhee’s strong personality. However several aspects of
the Parliamentary system remained, representing a compromise between Dr Rhee and the
advocates of a parliamentary system, such as giving the National Assembly certain powers. However
Dr Rhee’s party slowly gained control of the National Assembly, and the legislature started losing its
power as a check and balance on the presidency. The government under Dr Rhee slowly turned into
a dictatorial regime after constitutional amendments were passed in 1952 and 1954. He was forced
to resign in 1960 after a major student revolt, a response to the corrupt practices of the Government
which had culminated in the election of March 1960, where the only candidate running against Dr
Rhee had died suddenly and mysteriously.

The 2nd Government based on a general election adopted the parliamentary system. The
presidential system was seen to be a failure due to Dr Rhee’s presidency. This 2 nd Government was
weak and a military Coup overthrew the government in 1961. The army announced that a new
presidential system would be in place, with another new constitution. This new constitution was
crafted by professors of constitutional law, administrative law and political science. In 1963 the 3 rd
government took over, under former general Park. At first it worked quite well, but when general
Park tried to amend the constitution to allow him to run a 3 rd term, protests emerged. He ran for a
3rd term, and the opposition candidate almost won. In 1972, a new constitution was adopted again,
which firmly incorporated Judicial review.

The Supreme Court of Korea, with its new found powers, challenged a number of statutes, including
several that the Government were determined to save. It instituted measures to curb the power of
judicial review of the courts. In 1971, the Supreme Court, despite the reduced ability to use Judicial
review, still outlawed a provision that the government wanted to implement. The Government
denounced the Judiciary as not understanding the situation of its own nation, and created a new
constitution, which radically restructured the judiciary and banned the re-nomination of the majority
of the old supreme High Court judge. With that Judicial review disappeared from Korea.

In 1972, the constitution was reamended, giving large power to the President. This continued until
the assassination of the incumbent President Park on 1979. This constitution contained many
undemocratic aspects, and was bitterly received by the US. It was seen as a dark stage in Korean
Constitutional History. It’s sole purpose was to ensure that President Park would stay in office
permanently.

After his assassination, Martial law was announced, and a new Constitution was drafted again. In
1980, the Constitution of the 5 republic was implemented and the new government was formed. It
was a modified presidential system, where the president was elected for a single term of 7 years
with no possibility of re-election. He was also proposed to be directly elected by the people.
Parliament disagreed whether the president should be elected directly or indirectly, which led to
many protests in Korea. Eventually after much demonstrations and struggle Tae Woo Roh, on 1987
declared that a direct presidential system would be created, as a move towards political democracy.

After importing the US model of government, Korea’s period of acclimatisation was very long,
almost 39 years. The unique thing about the American model that took the Koreans so long to adapt
was the belief was that the judiciary, with the supreme court at the apex, needed to serve as a
check. The judiciary is seen as the guardians of the constitution, which is why they are held in high
regard. The constitution to the Americans represents the hard fight for independence from the
British, and hence they hold it in extremely high regard as well. This idea is hard to bring across to S
Korea. The sticking point was the quality of the judges. The whole notion of judicial review brings to
the fore the mode of government you have. Judicial review is not always appropriate, it depends on
the form of government you have. Judicial review might not be as applicable to more authoritarian
regimes.
-End-